Labour Law – ARR224 Lecture 11 The Employment Equity Act, 55 of 1998

Prescribed material Study: PGL (Chapter 4 par & 4.8) Case law (as indicated in Study Guide) Read: PGL (Chapter 4 par , 4.7 & ) LRL (Pp ) CLL (Pp )

Learning outcomes Give an exposition of all the possible forms of unfair discrimination.

EEA (Unfair discrimination I) Meaning of unfair discrimination Defined in “Discrimination Convention 111 of 1958” as follows Any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment and occupation…and any distinction, exclusion or preference with regard to a particular job based on the inherent requirements thereof, shall not be deemed to be discrimination. General definition of unfair discrimination may read as follows The use of irrelevant criteria to distinguish between individuals or groups which have the purpose/effect of less favourable consequences for members of one group, in relation to those of another. In employment context, definition would imply that: oConsideration/criteria not related to employment relationship = discrimination (if consequences operate to disadvantage or if disadvantage is envisaged) Consequences broadly and include negative effect on victim’s affective well-being. Subjective test. Focus on victim’s reaction. oAny differentiation on inherent requirements = not unfair discrimination. Fair discrimination and criteria must be relevant to business objectives. (Mthembu & Others v Claude Neon Lights = employer entitled to reward certain employees for outstanding performance, whilst not rewarding others. Differentiation based on merit is not unfair.)

EEA (Unfair discrimination II) Provisions of Chapter 2 (I) Chap 2 requires that every employer must take steps to promote equal opportunities in workplace, by eliminating unfair discrimination in employment policies and practices. Sect 6 prohibits unfair discrimination, direct or indirect, in any employment policy/practice on one/more of: Race Sex Gender Pregnancy Marital status Family responsibilities Ethnic or social origin Colour Sexual orientation Age Disability HIV-status Religion Conscience Political opinion Culture Language Birth

EEA (Unfair discrimination III) Provisions of Chapter 2 (II) Harassment regarded as type of unfair discrimination. “Affirmative action” and “inherent requirements of an occupation” not regarded as unfair discrimination (although it still is discrimination), and consequently permitted. Employer must address unfair discrimination in differences in salaries/wages, by collective/other agreements/provisions in BCEA/any other way adequate.

EEA (Unfair discrimination IV) Medical testing of employees Testing of employee for medical conditions = prohibited except where permitted/required i.t.o. legislation or where justified (medical facts, working conditions, social policy, equal distribution of employee-benefits or inherent requirements) The following criteria may be taken into account when considering whether medical testing is fair: oWhether work involves physical activity. oWhether test relates to actual and reasonable requirements of job. oWhether applicants have been adequately informed as to nature and purpose of test.

EEA (Unfair discrimination V) HIV-Testing Testing to determine HIV/AIDS also prohibited, unless permitted by Labour Court. In authorising such testing Labour Court may make any order it considers appropriate, including imposition of conditions relating to: oCounseling oMaintenance of confidentiality oPeriod for testing oCategory/categories of jobs or employees i.r.o. which authorisation applies.

EEA (Unfair discrimination VI) Psychometric testing Psychometric testing also prohibited, unless: oTest applied is scientifically approved to guarantee dependable results oTest is suitable for intended purpose. oTest is applicable on all employees, regardless culture, in order to exclude bias towards designated groups.

EEA (Unfair discrimination VII) Dispute resolution Any dispute regarding alleged unfair discrimination, including harassment, must be dealt with according to Chap 2 of EEA. (Originally formed part of Sch 7 of LRA. Were removed and are currently included in sect 10 of EEA.) Sect 10 refers only to disputes regarding unfair discrimination. Disputes regarding unfair dismissal are dealt with according to sect 191 of the LRA. Any dispute regarding alleged unfair discrimination must, in writing, within 6 months (after occurrence of act/omission which caused alleged unfair discrimination) be referred to CCMA. Copy of referral must be served on every other affected party. CCMA must attempt to resolve dispute through conciliation. If dispute remains unresolved after such conciliation, any party may refer dispute to Labour Court. (Parties may also assent on reference of dispute for arbitration) When unfair discrimination is alleged, onus is on employer to prove that discrimination was fair. If alleged unfair discrimination is not based on one of listed grounds, employee must firstly prove discrimination, and secondly unfairness thereof.