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You can 'fairly' discriminate against employees on these 4 grounds

by , 21 April 2016
The general understanding is that discrimination in the workplace is not allowed. After all, Section 6 of the Employment Equity Act makes it very clear that you may not discriminate against employees on many grounds, such as:

· Accommodation;
· Age;
· Appearance;
· Birth;
· Gender;
· HIV status;
· Ethnic origin;
· Family responsibility;
· Union membership; and
· Marital status; etc.

If you do, you'll face fines of up to R2.7 million, or even as much as 10% of your annual turnover, per case!

But it's worth noting that discrimination in the workplace is not as absolute as we would like to believe. In other words, you can actually 'fairly' discriminate against employees in the workplace.

Yes, I understand that the very fact you can have 'fair' discrimination is already a spanner in the works for the supposedly straightforward concept of workplace discrimination. But it does exist, and you should be aware of what it is, because one little misunderstanding or misinterpretation here can lead to costly cases of unfair discrimination!

So then, let's take a look at what this so-called 'fair' discrimination is...


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Fair discrimination is discrimination that can be based on 4 grounds.
They are:
Ground#1: Affirmative Action
Affirmative Action is intended to promote employment equity to members from designated groups, namely black Africans, women and disabled persons. In other words, it sets out to provide fair representation for groups who were 'previously disadvantaged'.
Affirmative Action can be a reason for fair discrimination against members from non-designated groups.
Ground#2: Productivity
By law, it's fair for an employee to discriminate based on the grounds of productivity.
For example, and employer may wish to give an increase to one employee, based on merit, while not necessarily doing so for another employee.
But remember that this would be based on the fairness of the criteria you use to measure workplace performance in the workplace. In other words, were the reasons for why you gave one employee an increase, and not the other, justifiable (based on performance) and can you prove this (performance bonus criteria)?
REMEMBER: An increase should never be based on any grounds that would amount to unfair discrimination, such as race, gender, religion and so on.

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Ground#3: Inherent requirements for the job
Some jobs have inherent requirements. For example, a doctor may require a medical degree, a pilot may require a certain level of eyesight, and females may only be searched by female security guards.
Requiring things like this do not amount to 'unfair' discrimination, but instead are regarded as 'fair'.
Ground#4: Compulsory discrimination by law
The law provides for certain conditions that can automatically be discriminated against.
They are that an employer may not hire:
·          children below the age of 15 years; or
·         pregnant women 4 weeks before childbirth or 6 weeks thereafter.
*Those were the 4 grounds on which you may discriminate against employees
To learn more on discrimination in the workplace, such as what all the grounds for unfair discrimination are, along with explicit details on each of them, including practical examples and case law, and much more, simply page over to chapter D 04: Discrimination: A-Z Guide in your Labour Law for Managers handbook.
If you don't already have it, click here.

NOTE: At the end of the day, you literally can't afford to be less than 100% sure of what discrimination in the workplace really is! And with this invaluable labour resource, you'll find all you need to know in order to avoid paying heavy fines in the future.

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