IURI 222
SU 7: Discrimination and Employment Equity
STUDY OUTCOMES
Page 52 and 53 in study guide
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“WET OP GELYKE INDIENSNEMING”
EMPLOYMENT EQUITY ACT
1. Consist of two parts
a) Involves the prohibition of discrimination
b) Involving the implementation of an affirmative action plan in the workplace
2. Section 6
Section 6(1)
No person may unfairly discriminate, directly or indirectly, against an
employee, in any employment policy or practice, on one or more grounds,
including race, gender, sex, pregnancy, marital status, family responsibility,
ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV
status, conscience, belief, political opinion, culture, language, birth or on any
other arbitrary ground.
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WHAT IS UNFAIR DISCRIMINATION?
1. What is discrimination, and when is it unfair?
2. Difference between discrimination and differentiation!
3. Every discriminatory practice based on differentiation – “Employees are denied
rights that other employees have been granted” (ie treated differently)
4. BUT Differentiation not necessarily discrimination – only when unequal
treatment was based on a prohibited ground
5. Employee must prove
6. “If not for my gender, I would not have been disadvantaged”
7. Unequal treatment is unfair if there is no valid reason for such differentiation
(only unfair discrimination is forbidden)
8. The employer must prove fairness
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DIRECT OR INDIRECT DISCRIMINATION
1. Direct
a) Employees treated differently specifically due to a ground in Section 6
b) Intentional
c) Association of Professional Teachers
2. Indirect
a) A neutral decision or practice which would probably exclude or
disadvantage a specific group
b) Intentional or unintentional
c) POPCRU case
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WHO IS PROTECTED IN TERMS OF SECTION 6
1. EEA applicable to all employees
2. No “person” (employer, co-employee, client, organisation etc)
may discriminate against an “employee”
3. According to EEA: “employee” includes applicants for the job
4. Person is overlooked for employment due to the presents of one
of the grounds in section 6
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PROHIBITED GROUNDS
1. List in section 6 not exclusive
2. Discrimination on one of listed grounds : presumed unfair
3. Ex. Age – Swart v Mr. Video
Religion – Kievits Kroon v Mmoledi (NB also for automatically unfair
dismissal!)
4. If not in list : employee has to prove that is was unfair
5. If discrimination doesn’t fall within these listed grounds – employee
should prove that his dignity was affected (Section 11)
6. Harksen v Lane
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DEFENCES TO DISCRIMINATION CLAIMS
1. Absence of intention not a defence – negative effect of unintentional discrimination is sufficient
2. What can the employer do?
a) Employer claim that the conduct/omission didn’t amount to discrimination (ie differentiation, but not based
on prohibited ground)
b) Prove that another discriminated, and the employer did everything he could to prevent or eradicate it
c) Admit that the conduct or omission did amount to discrimination, but that it was not unfair
3. 2 admissible reasons for fair discrimination
Section 6(2)
It is not unfair discrimination to
(a) take affirmative action measures consistent with the purpose of this Act; or
(b) distinguish, exclude or prefer any person on the basis of an inherent requirement of a
job.
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FAIR DISCRIMINATION
1. Inherent requirements of the job
a) May prefer specific employee if it is necessary for the proper governance of the business
b) ‘Inherent’ refers to a specific personal characteristic of the employee
c) It should be a true necessity for the business – need can only be satisfied by a specific
employee
d) Employer should prove that the other employee was unsuitable for the purpose of the business
e) BUT: Employer must reasonably accommodate characteristic first
f) Hoffman v SAA
g) IMATU v City of Cape Town
h) Department of Correctional Services v POPCRU (compare with Dlamini v Green Four Security)
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AFFIRMATIVE ACTION (CHAPTER 3 EEA)
1. Degree of discrimination towards certain groups to the benefit of those who have been
disadvantaged in the past
2. This discrimination not unconstitutional (not in breach of section 9 of the Bill of Rights) –
See Van Heerden
3. SA’s employment population should reflect the population as a whole (regionally and
nationally) (balance in representation)
4. Staff of the designated employer must be proportional to the representation in society
5. NB! Who is a designated employer? (P. 256-257 TB)
6. Suitably qualified persons of designated groups should receive equal opportunity
(substantive equality)
7. Who are the designated groups?
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FAIR DISCRIMINATION : AFFIRMATIVE ACTION AS DEFENCE
1. Affirmative action measures
a) Section 15
b) Employees cannot claim that they were discriminated against where valid
affirmative action was executed (NB – Barnard (CC))
c) Staff should be represented by a balanced variety of groups on all
occupational levels (section 42) (Solidarity v Department of Correctional
Services (CC))
d) Benefits must therefore be granted within proportion to the aim of the act in
order to achieve equal opportunities and rights
e) Must be applied within the ambit of the EEA to be fairly executed
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FAIR DISCRIMINATION
f) Courts held that execution of affirmative action cannot be justified if someone who
is COMPLETELY incompetent were employed in terms of it
g) However, it is also held that affirmative action appointments can’t be done only
when the designated employee has comparable qualifications to that of the other
applicant
h) Should be SUITABLY qualified – section 20 NB!
i) Balance should be found between equality and efficiency of the workplace
(Coetzer NB)
j) Reasonable accommodation!
k) Remember! When targets already reached or employer do not have a plan in
place to prove rationality…affirmative action will unlikely succeed as defence
(Reynhardt)
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EMPLOYMENT EQUITY PLAN
1. Employer should act in terms of a fair, proportional and rational affirmative
action plan (Solidarity v Department of Correctional Services (CC); Naidoo v
Minister of Safety and Security)
2. Employer should draw up a plan in the workplace
3. Plan must have the purpose of reaching equal opportunity
4. Plan should indicate the aims thereof
5. Should indicate the numerical aims (percentage) and the duration of the
plan
6. How is the plan prepared?
7. Reports must be issued
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HARASSMENT
1. S 6(3) of the EEA
2. Harassment on any of the grounds listed in 6(1) – unfair discrimination
3. Harassment – unwelcome conduct against specific groups of persons
(persistent or single serious incident) which creates hostile environment
and/or when the recipient is threatened by some detriment if they do not
submit
4. Sexual harassment NB!
5. EEA does not elaborate – See Code on Sexual Harassment (2005)
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HARASSMENT
6. See item 4 and 5 specifically! – How is it determined whether sexual harassment in the
form of discrimination occurred?
John, working at a law firm, finds a note on his desk. It reads: “ I find you extremely cute! I you
like me too, maybe we should go out for dinner some time! Carla xoxo ”. Carla is one of John’s
seniors. He is immediately uncomfortable and decides to ignore the message. The next day
John receives an email from Carla, asking him if he has considered her proposal. He replies,
saying that he is not comfortable with the idea and that they should forget about the whole thing.
She answers: “That’s a pity! You don’t know what you’re missing .” Two weeks later John finds
a picture of Carla on his desk, wearing a bikini. He is upset about this and takes the first note
and the picture to his employer. The employer laughs it off and says it is probably just a joke. A
week later Carla corners John in the kitchen and tries to kiss him, but he pushes her away.
Immediately thereafter John goes to his employer, but the employer refuses to take steps
against her because Carla brings in a lot of money for the firm.
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HARASSMENT
7. Employer should appoint someone to whom employees can turn to for
complaints – shop steward or psychiatrist
8. Complainant can decide on formal or informal approach
9. Informal – offender called in and informed of the complaint
10. If unsuccessful – formal approach
11. Formal approach entails an investigation and possible disciplinary hearing
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HARASSMENT
12. If result of the disciplinary hearing is unsatisfactorily – complainant can
refer to the CCMA for conciliation
13. If still unsuccessful – refer to Labour Court
14. NB! What if the employer takes no steps to help the victim?
a. Section 60 of the EEA
b. Liable as if the employer committed the conduct
c. Grobler v Naspers and Ntsabo v Real Security
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MEDICAL AND PSYCHOLOGICAL TESTING
1. Section 7
2. Impermissible
3. Except if allowed by legislation for purposes of medical facts, employment
conditions, social policies and inherent requirements of the job
4. Special application to the Labour Court in case of HIV/Aids testing
5. Application not necessary if employee gives his consent or volunteers the
testing if it is done anonymously - Irvin & Johnson v Trawler & Line Fishing
Union
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REMUNERATION AND BENEFITS
1. Section 6(4) of the EEA
2. Equal payment for same or similar work or equal payment for work of equal value
3. Distinction based on any grounds listed in S 6(1) – unfair discrimination
4. What must the employee prove?
a. Identify comparable employee (from
the same employer)
b. Prove that the work is the same,
similar or of equal value
c. Prove difference in payment based
on an unacceptable ground
5. When is unequal payment justified?
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