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If you don't have an affirmative action plan, you can't discriminate against job applicants

by , 20 October 2014
Let's say, you're recruiting in your workplace.

A number of applicants from different racial groups apply.

You decide to discriminate against certain applicants for the purpose of promoting affirmative action in your company.

While such discrimination might be fair in terms of the Employment Equity Act (EEA), you need to be extremely careful when doing this.

Here's why...

 
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You can only discriminate job applicants on the grounds of affirmative action if you have an affirmative action plan

 
You need to tread very carefully when discriminating against job applicants, even when you're doing it for affirmative action purposes.
 
If you don't, you could open the door to labour disputes.
 
As the Labour Law for Managers Loose Leaf Service explains, in the matter between Walters vs Transitional Local Council of Port Elizabeth & Another 2000, 21 ILJ 2723), the Labour Court found that the affirmative action exception won't apply in each and every case.
 
In the Walters case, the job applicant, a white female with the necessary experience was short-listed for a position of Principal Personnel Officer together with a black male.
 
The selection committee of the Transitional Local Council recommended the black male. As a result, the white female referred an unfair discrimination application to the Labour Court.
 
Based on the facts of this specific case, it was shown that the Council didn't have a proper affirmative action plan. And, the Court ruled against the employer.
 
In doing so, the court made it clear that the EEA provision that allows employers to discriminate in the interests of affirmative action only applies to employers who have a proper affirmative action plan in place and who are properly complying with it.
 
The bottom line: Before you discriminate against applicants on the grounds of affirmative action, have an affirmative action plan. Otherwise, you'll open the door to labour disputes.

PS: For more information on affirmative action and employment equity, check out the Labour Law for Managers Loose Leaf Service.


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