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Employment Equity: Six grounds for discrimination that can be either fair or unfair

by , 03 June 2016
Employment Equity: Six grounds for discrimination that can be either fair or unfairThere are approximately 30 grounds for discrimination in the workplace. Some of which are considered fair, while others are considered unfair.

The problem with these grounds, however, is that what's considered fair and unfair is not absolute,
and what some of these grounds do is overlap - which can create lots of confusion.

But with the Employment Equity Act (EEA), you simply can't afford to be confused, especially when you risk receiving fines of up to R2.7 million, or 10% of your entire annual turnover!

So to help you gain some clarity on how these overlapping grounds work, I'll show you six of them.

Keep reading to find out what they are...


The six grounds for discrimination that can be either fair or unfair are…  


Age is a ground for unfair discrimination. You may not reject a job applicant for a position based on their age, and you can't specify a specific age for a job in the advertisement.

However, you can discriminate on age if you can prove the following point

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'. The key here is to justify the requirements as inherent.
So when you set out your requirements, you should make sure they:
·         Are reasonable;
·         are in line with your standards of authenticity;
·         comply with generally accepted notions of common decency as well as legal requirements; and
·         include a certain level of ability or skill.
IMPORTANT NOTE: When it comes to age, children under the age of 15 years are automatically discriminated against, in that they may not be hired.

Also, it's worth noting that in Section 187 of the Labour Relations Act (LRA), it's stated that an employer may fairly dismiss an employee, based on age, who has exceeded his retirement age.
GROUND#2: Conscience

Conscience refers to the way someone feels about something. And you supposedly can't discriminate against someone because of it.

For example, you may have an employee who doesn't wish to work with alcohol because of her conscience, or another who refuses to handle firearms for the same reason.

But while they're entitled to their beliefs, they mustn't interfere with their jobs, especially the inherent requirements for their jobs.

You should make it clear what your employees will be required to do on the job from the day you start recruiting them. This way they'll know exactly what's required of them, which in turn will prevent them from being able to refuse these activities because of conscious objections.

So, from the above examples, serving alcohol at a bar, as a waitress, could be seen as an inherent requirement for the job, and having to carry firearms could very well be a requirement for a security officer.

If any of these factors interfere with their conscience, the chances are it'll also interfere with their jobs, and so you can have reason to discriminate against them.

TIP: It's highly recommended that you clearly state all the requirements for the job in the job advertisements as well as in the interview.

Keep reading to see what GROUND#3 is…

Revealed: The ONE checklist that'll show you if you're complying with all 26 changes to the Employment Equity Act...

Use it to avoid business-crippling, non-compliance fines from the DoL

GROUND#3: Affirmative Action

This is an official ground for fair discrimination in the workplace.

It's where preference is giving to members from 'designated groups', provided that they meet the inherent requirements for the job even if they are not necessarily the most suitable candidate for the job, with the overall goal of achieving equitable representation in the workplace.

So, if for example two applicants have fairly similar qualifications, you can select the member who is from a designated group over the member of a non-designated group, even if the member from the designated group is not necessarily the 'best' for the job, without worrying about legal consequences.

But that general understanding isn't necessarily true, as what's fair and unfair here can overlap, as was seen recently in Johannesburg…

Here, the Labour Court ruled that the South African Police Service's Employment Equity Plan was unlawful. They found that the EE Plan was a mere quota system, which meant that it was non-compliant with Section 15 (3) of the Employment Equity Act.

They also noted that the SAPS didn't have a deviation provision, which is a clause in the EE Plan preventing the absolute and inflexible application of numerical targets.

What you should learn from this is that you can't implement Affirmative Action by simply introducing a quota system, nor can you create absolute barriers for members from non-designated groups, as this will amount to the entire ground being unlawful.

Remember that while section 15 (3) of the EEA specifically says that numerical goals and preferential treatment are measures used to achieve equitable representation in the workplace, quota systems are prohibited.

All in all, if you want to keep this ground fair in the eyes of the law, then you should implement affirmative action correctly by ensuring that your EE Plan is in line with all relevant legislation, particularly with the EEA. If not, you'll turn it into unfair discrimination.

GROUND#4: Pregnancy

You may not discriminate against an employee who wants to start a family or who terminates a pregnancy for whatever reason. Also, you may not refuse to hire or promote someone, or fire someone simply because she's pregnant.

But this ground isn't absolute. In other words, discrimination on the ground of pregnancy can be justified….

In the case of Whitehead v Woolworths (2000) 21 ILJ 571 LAC and (1999) 20 ILJ 2133, the applicant had been offered a full-time position at Woolworths. But only a few days later, the position had been withdrawn from her and replaced with a five-month fixed-term contract.

The reason for this withdrawal and change was Whitehead's pregnancy which came to the employer's attention in the interim.

The Labour Court stated that an employer can't discriminate against an employee solely because she will take maternity leave shortly after appointment.

But the Labour Appeal Court disagreed with the Labour Court here, and instead held that the requirement for continuity of service actually justified the discrimination against Whitehead.

It was shown that Woolworths was experiencing problems at the time and that the nature of the job in fact required uninterrupted continuity of service for a period between 12 to 18 months.

The fact that the Whitehead would not have been able to fulfil the requirements for the position showed that the decision to withdraw her post revolved around her pregnancy.

INTERESTING NOTE: The law states that pregnant women 4 weeks before childbirth, or 6 weeks thereafter, may be automatically discriminated against in the workplace in that you may not hire them.
Keep reading to see what the last two grounds are…

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GROUND#5: Religion

Your workplace must be accessible to people of all religions. In other words, different religions have different requirements and rules, and you should try to accommodate all of them. Failure to do this will amount to unfair discrimination.

However, in the case of Dlamini and Others v Green Floor Security (2006) 11 BLLR 1074, it becomes apparent that an employer can in fact discriminate against employees based on their faith. Take a look…

In this case, the employer believed that being cleanly shaven was an inherent requirement of working for him, for the sake of tidiness and company image. And so he dismissed a group of employees for not shaving their beards – even though their religion did not permit it.

They then claimed it was an unfair dismissal.

However, it was found that it wasn't, because the employees couldn't prove that the mandatory wearing of beards was a central tenet of their faith, and that should they break such a rule, they'd be severely punished.

In other words, and to quote from the case itself: '[T]hey have to prove that trimming their beards is prohibited as a violation of an essential tenet of their faith.'

If they could show this, then they could prove they were unfairly discriminated against.

So always keep in mind that when an employee makes a claim that their appearance or behaviour is in line with their religious beliefs, they need to be able to prove that what they're claiming is a legitimate, and important, condition of their belief, and that violating it would be considered extremely serious.

If they can't, then you could possibly justify your discrimination against them.

GROUND#6: Productivity

By law, it's fair for an employee to discriminate based on the grounds of productivity.
For example, an 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 could easily be unfair discrimination if you can't justify its fairness.
To do this, you must emphasise performance as the reason for discrimination, and nothing else, after which you must be able to prove this, by having performance criteria from which you measure employee performance in the workplace.
*To learn more on discrimination in the workplace, page over to Chapter D 04: Discrimination: An A-Z Guide, in your Labour Law for Managers handbook, or click here to order your copy today. 

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