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What's the difference between fair and unfair discrimination in the recruitment process?

by , 20 September 2013
You need to be careful when you interview and recruit new employees. That's because when you hire an employee, you differentiate between good and better candidates. If a potential candidate feels he didn't get the job because you unfairly discriminated against him, he can take you to the Labour Court for discrimination. Read on to discover the difference between fair and unfair discrimination so you can avoid a trip to the Labour Court.

There's a difference between fair and unfair discrimination.

Knowing the difference could help you avoid facing a Labour Court judge for someone that isn't even an employee!

So what is unfair discrimination?

The Labour Law for Managers Loose Leaf Service explains that unfair discrimination can be either direct or indirect.

And it unfairly gives a candidate an advantage or disadvantage based on criteria that isn't job-related.

Here's an example of direct unfair discrimination: Joseph doesn't get the job at ACME Furniture because he was born in Durban and they only hire staff born in Johannesburg.

Here's an example of indirect unfair discrimination: ACME Finance only advertises a position in newspapers traditionally read by a certain demographic group. This reduces the chances of candidates from other demographic groups applying for the positions.

So what's fair discrimination?

Fair discrimination is when criteria is based on the requirements for the position.

This includes affirmative action, inherent requirements of the job (for example, a blind person can't be a pilot) or discrimination made compulsory by law (for example, you can't employ a child younger than15 years old).

Be warned: Even if you don't unfairly discriminate against a potential employee, if you ask questions that could imply unfair discrimination, you may have to defend yourself at the Labour Court.

So avoid any questions that could be interpreted as discriminatory.

Make sure your interview questions:

  • Are job-related
  • Are based on an inherent requirement of the job
  • Gain an understanding of the person's ability to perform the job
  • Don't discriminate on the following grounds:
  1. Race;
  2. Gender;
  3. Sex;
  4. Ethnic or social origin;
  5. Colour;
  6. Sexual orientation;
  7. Age;
  8. Disability;
  9. Religion;
  10. Conscience;
  11. Belief;
  12. Political opinion;
  13. Culture;
  14. Language;
  15. Marital status; and
  16. Family responsibility.

Discrimination on any other grounds other than those listed above may also be unfair if they have the potential to fundamentally impact the candidate's dignity.

Knowing the difference between fair and unfair discrimination will help ensure you avoid unfair discrimination cases.

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