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There are 2 instances when you can discriminate against employees. Do you know what they are?

by , 01 December 2015
The Employment Equity Act is in place to make sure there's no unfair discrimination in the workplace. In other words, you can't discriminate unfairly, directly or indirectly, against an employee. This is on grounds such as age, race, gender, religion, language, HIV status, marital status, sexual orientation and so on.

But, did you know there can also be something called 'fair discrimination'? In other words, there are 2 grounds on which you can discriminate on, as listed below...

Ground#1: On the grounds of inherent job requirements

These are requirements that someone must meet in order to do the job according to generally accepted standards.

Make sure you clearly define all job requirements. In other words, make sure your requirements:

·        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.
 
NOTE: All job applicants have rights. So if an applicant feels she didn't get the job because of unfair discrimination, she can take you to the CCMA. That is why you should be able to justify your case and eliminate any potential unfair discrimination from the recruitment process altogether.
 
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Ground#2: Affirmative Action

This is where preference is giving to member from 'designated groups', provided they meet the inherent requirements for the job, even if they aren't necessarily the most suitable candidate for the job.

So, if two applicants have fairly similar qualifications, you can select the person from a designated group over someone of a non-designated group, even if the applicant from the designated group isn't necessarily the 'best' for the job. This is seen as fair discrimination on the grounds of
Affirmative Action.

Just ensure that this is defensible in line with your EE Plan.

NOTE: Affirmative Action applies to designated employers, which requires them to ensure equitable representation in their companies so as to reflect the demographics of South Africa.
 
*If you want to learn more on Employment Equity as well as unfair discrimination in the workplace, subscribe to The Practical Guide to Human Resources Management today. 

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