Employment Equity Act 1998 Chapter 11

Unfair discrimination in the working environment is regulated by the Employment Equity Act (EEA). The EEA places a positive obligation on employers to find and eliminate unfair discrimination in the workplace an in its policies and practices. This process starts at the recruitment process already as the EEA protect job seekers against unfair discrimination and unfair medical and psychometric testing.

Chapter 2 of the Act, dealing with discrimination, applies to all employees, job applicants and employers or prospective employers. A job applicant for the purpose of the EEA is a person who applied for a position with an employer. Unfair discrimination outside the employment relationship should be dealt with in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act, 4 of 2000. A person who submits a CV with a recruitment agency, without applying for a specific position, can therefore not claim to be an applicant for the purpose of the EEA.

The EEA also defines the dispute resolution mechanisms through the CCMA and the Labour Court.

Elimination Of Unfair Discrimination: Every employer must take steps to promote equal opportunity in the workplace by eliminating unfair discrimination in any employment policy or practice.

Prohibition Of Unfair Discrimination: 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 and birth.

It is not unfair discrimination to –

(a) Take affirmative action measures consistent with the purpose of the Act: or

(b) Distinguish, exclude or prefer any person on the basis of an inherent requirement of a job.

Harassment of an employee is a form of unfair discrimination and is prohibited on any one, or a combination of grounds of unfair discrimination listed in subsection (1).

Burden Of Proof:  Whenever unfair discrimination is alleged terms of the Act, the employer against whom the allegation is made must establish that it is fair.