Implication for Employers

What This Means To You As An Employer/Interviewer

The Act expects of employers to establish the same job relatedness and business necessity criteria for any pre-employment selection process, and to judge all applicants by the same job-related criteria. Organisations now need to ensure that every aspect in their selection system is equitable and fair.

This includes:

Although you do not mean to discriminate, the bottom line is that if your hiring practices are not based on job-related criteria, you might be leaving yourself and your company open to legal action. Discrimination is referred to throughout the Act. Discrimination may be direct or indirect and may be defined as assigning characteristics to an individual which are generalised assumptions about groups of people.

Applicants can be directly discriminated against on the following grounds:

• Family responsibilities (mother with small children)
• Marital status (single, divorced)
• Age (must be between 25 and 60)
• Bilingual (must be fluent in Afrikaans and English)
• Gender
• Race (must be white)
• Disability (diabetes, HIV positive, dyslexia, handicapped)

In many instances, organisations do not intend to discriminate in their selection practices. It is often due to indirect discrimination that they are acting unfairly. In the eyes of the law this is no excuse.

Indirect discrimination includes:

• Use of inappropriate tests
• Inappropriate use of test results
• Setting unrealistic selection criteria
• Use of inappropriate selection methods
• Inconsistency in questions asked during the interview
• Media selection in advertising for applicants
• Pre-employment medical examinations and the subsequent usage of information
• Not considering or inviting internal applications

In the case of both direct and indirect discrimination it is up to the organisation to prove that it did not, even unintentionally, discriminate. The bottom line is that if hiring practices are not based strictly on job-related criteria, selection components are not fair and equitable; organisations may be leaving themselves open to legal action.

Examples Of Discrimination

• You would be guilty of gender discrimination if you denied a woman employment because her spouse was likely to be relocated.
• You cannot refuse to hire or promote a qualified person because of his or her religious affiliation. Also, you are obligated to make a reasonable attempt to schedule employees’ time off for their recognised religious observances.
• Trying to ‘protect’ females by requiring them to take an early leave of absence because of pregnancy or by refusing to hire them for night shifts or dirty, strenuous jobs is discriminatory – and therefore illegal.

In other words, your intent or reason for discriminating, not matter how ‘pure’, is not considered justifiable. With regard to unfair discrimination, it is provided that prima facie evidence of discrimination ‘constitutes’ until contrary is proven, sufficient proof of unfair discrimination. What this effectively means is that if an applicant for employment can reasonably supply evidence to the effect of unfair discrimination, the case will be assumed to have been proven unless the employer can provide evidence of the contrary.

It is important to note that in this instance the burden of proof has shifted from the complainant to the defendant, which makes sense since many applicants for employment will not have access to the company’s files and documentation. As such, employers will be forced into disclosing their criteria and reasons for their selection decision.

Click here to view a video on interviewing and hiring for HR and Executives.