Discrimination in the Workplace: Fair vs Unfair

Discrimination in the Workplace: Fair vs Unfair

Human Resources

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Did you know that there is no limit on the monetary award for unfair discrimination at CCMA?

In terms of the South African Constitution and, more specifically, the Employment Equity Act, no employer may unfairly discriminate against a person.

So what does it mean to discriminate? Discrimination can be defined as the treatment or consideration of a person, or making a distinction in favour of or against a person based on the group, class or category to which the person belongs rather than the individual’s merit. These could include race, gender, sexual orientation, age, beliefs, conscience etc.

The Act states that 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, 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. What is interesting to note in all of this is the word ‘unfairly’, which implies that you can you may not unfairly discriminate, which means that you can discriminate fairly.

There are four grounds under which discrimination would be deemed fair:

  1. Discrimination based on AFFIRMATIVE ACTION, i.e. in favour of designated groups (black people, women and people with disabilities).
  2. Discrimination based on the INHERENT REQUIREMENTS OF THE JOB, i.e. years of experience, qualification, driver’s license, technical skill etc.
  3. Discrimination based on LAW, not allowing a child under the age of 15 to work.
  4. Discrimination based on PRODUCTIVITY, i.e. bonuses for performance. This is provided that the criteria used for assessing the performance are fair, reasonable and objective.

How, as a business owner or HR Manager, do you ensure that you are not unduly accused of unfair discrimination?

  1. Clear, objective and standardised recruitment and interview processes
  2. Objective and measurable job profiles
  3. Employment Equity policies
  4. Objective and measureable performance appraisal systems