DISCRIMINATION
WHAT IS DISCRIMINATION a policy of remunerating a female employee on a lower scale
simply because she is a woman, whereas a male employee is
Discrimination is to show favour, prejudice or bias for or against DISCRIMINATION BASED ON INHERENT REQUIREMENT OF remunerated at a much higher scale for doing the same work.
a person on any arbitrary grounds, for example on the basis of A JOB Indirect discrimination, on the other hand, is not as easily
race, gender, sex, pregnancy, marital status, family recognisable as it is a more subtle form of discrimination. It
responsibility, ethnic or social origin, colour, sexual orientation, Any discrimination based on the inherent requirement of the involves the application of policies and practices that are
age disability, religion, HIV status, conscience, belief, political particular job does not constitute unfair discrimination. An apparently neutral and do not explicitly distinguish between
opinion, culture, language and birth by an employer. inherent requirement of a job depends on the nature of the job employees and job applicants but that, in reality, have a
and required qualifications. If such requirements can be shown, disproportionate and negative effect on certain individuals or
TYPES OF DISCRIMINATION discrimination will be fair, for example a person with extremely groups. The laws also emphasise that—
poor eyesight cannot be employed as an airline pilot. Sexual harassment will be prohibited;
There are two kinds of discrimination— Medical testing will not be allowed unless it is an inherent
Fair discrimination; and FAIR COMPULSORY DISCRIMINATION BY LAW requirement of the job;
Unfair discrimination Psychological testing or other assessment cannot be done
The law does not allow the employer to employ children under unless such tests are validated and will not be biased;
WHAT IS FAIR DISCRIMINATION the age of 15 years, or pregnant women four weeks before In addition, HIV testing can only be carried out if authorised
confinement and six weeks after giving birth. by the Labour Court; and
The law sets out four grounds on which discrimination is All these protections also apply to applicants for
generally allowed— DISCRIMINATION BASED ON PRODUCTIVITY employment.
Discrimination based on affirmative action; Essentially one has to give consideration to the impact of
Discrimination based on inherent requirements of a It is also fair by law for the employer to discriminate on the basis actions, policies and procedures when evaluating discriminatory
particular job; of productivity when giving an increase, for example increases practices rather than the intention thereof.
Compulsory discrimination by law; and based on merit. This, of course, would be dependent on the
Discrimination based on productivity. fairness of the criteria utilised for assessing performance and WHAT STEPS SHOULD YOU TAKE WHEN UNFAIR
productivity. DISCRIMINATION TAKES PLACE
DISCRIMINATION BASED ON AFFIRMATIVE ACTION
WHAT IS UNFAIR DISCRIMINATION Any employee who feels that he/she has been unfairly
Affirmative action measures are designed to promote discriminated against or that an employer has contravened the
employment equity (fairness in favour of the designated groups Any employer’s policy or practice showing favour, prejudice or laws can lodge a grievance in writing with their employer. The
— blacks, women and disabled persons). Affirmative action aims bias against employees in terms of the abovementioned grounds matter can thereafter be referred to the CCMA within six months
to achieve equality at work without lowering standards and and which is not fair can be deemed to be unfair discrimination. where the issue cannot be resolved at the workplace. If the
without unduly limiting the prospects of existing employees, for There are two forms of discrimination related to ‘unfair CCMA is not able to resolve the dispute through conciliation, the
example by getting rid of discrimination in company polices, discrimination’, namely— matter can either be referred for arbitration (if both parties agree)
procedures and practices. Its main aim is generally to ensure Direct discrimination; and or to the Labour Court for adjudication.
that that the previously disadvantaged groups are fairly Indirect discrimination.
represented in the workforce of a particular employer. Direct discrimination is easily identifiable and involves overt RELEVANT LEGISLATION
differential treatment between employees and job applicants on
the basis of arbitrary grounds. For example an employer follows The Constitution of the Republic of South Africa
CCMA Info Sheet: DISCRIMINATION - JAN 2002
FOR MORE INFORMATION CONTACT THE CCMA OPERATIONS & INFORMATION DEPARTMENT ON (011) 377-6650 OR YOUR NEAREST CCMA OFFICE
DISCRIMINATION
Employment Equity Act
Basic Conditions of Employment Act
Promotion of Equality and Prevention of Unfair Discrimination
Act
CCMA Info Sheet: DISCRIMINATION - JAN 2002
FOR MORE INFORMATION CONTACT THE CCMA OPERATIONS & INFORMATION DEPARTMENT ON (011) 377-6650 OR YOUR NEAREST CCMA OFFICE