EMPLOYMENT EQUITY

COURSE CONTENT
1. Introduction to Labour Law;
2. The Common Law and the Individual Employment Contract;
3. Basic Conditions of Employment;
4. Employment Equity;
5. Collective Bargaining and Industrial Action;
6. Dismissals And Unfair Labour Practices;
 CONSTITUTIONAL EQUALITY
• The right to equality is contained in section 9 of our Constitution;
• Equality
• (1) Everyone is equal before the law and has the right to equal protection and benefit of the
law.
• (2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of
equality, legislative and other measures designed to protect or advance persons, or categories of persons,
disadvantaged by unfair discrimination may be taken.
• (3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds,
including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age,
disability, religion, conscience, belief, culture, language and birth.
• (4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of
subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.
• (5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the
discrimination is fair.

•
 Section 9(1) everyone is
equal before the law;

THE The right to equal

EQUALITY protection is guaranteed;
CLAUSE
Equality is a fundamental
value that must be upheld;
 THE AFFIRMATIVE ACTION CLAUSE
• Measures were required to address the inequities of the past;
• Women and black people;
• Affirmative action is a measure introduced by law to create equal
opportunities in the workplace for all people of South Africa;
• Affirmative actions aims to include rather than to exclude;
 THE ANTI-DISCRIMINATION CLAUSE

Different treatment of different people;

Unfair discrimination;

Fair Discrimination?

Discrimination on the basis of a listed ground;

 PURPOSE OF THE EMPLOYMENT
EQUITY ACT
• The Purpose of the Act:
• To eliminate discrimination in the workplace:
• To make provision for affirmative action measures to redress disadvantages in
employment experienced by designated groups;
• To ensure the equitable representation of persons from designated groups in all
occupational levels;
 APPLICATION OF THE EEA
• The EEA does not apply to:
• Members of the National Defence Force, The National Intelligence Agency and
the South African Secret Service, the South African National Academy of
Intelligence.
• The directors and staff of COMSEC;
• When dealing with unfair discrimination, the abovementioned groups can go to
the Concourt/Human rights commission to;
• Chapter 2 applies to all employees and employers;
• Jobs applicants?
• Chapter 3 only applies to designated employers and people from
“designated groups”
 APPLICATION OF THE EEA
• Who is a designated employer?
• A person who employs 50 or more employees;
• A person who employers less than 50 employees but who’s turnover exceeds….
• A municipality
• An organ of state. Excluding?
• A person who becomes a designated employer via a collective agreement;
• Who are people from designated groups?
• Black People: who falls within this category?
• Women;
• People with disabilities;
• Members of the designated groups must be RSA citizens by descent or by
naturalization (27 April 1994)
 • ILO definition of discrimination;
• Any preference made on the basis of race
color, sex, religion, political opinion,
THE MEANING OF national extraction or social origin, which
UNFAIR has the effect of nullifying or impairing
equality of opportunity or treatment in
DISCRIMINATION employment and occupation...;
• Distinction based on inherent requirements;
 UNFAIR DISCRIMINATION

• Section 6(1) of the EEA:

• 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,
birth or on any other arbitrary ground;
• 4 Elements.
 UNFAIR DISCRIMINATION
• Four important elements of this provision are:
• Discrimination as such is not prohibited, only unfair discrimination is
prohibited;
• Differentiation versus discrimination and unfair discrimination;
• Both direct and indirect discrimination are prohibited;
• The prohibition aims primarily to protect employees against the policies and
practices of employers;
• The provision contains a list of twenty grounds on the basis of which
discrimination is prohibited.
 UNFAIR DISCRIMINATION
• The EEA also addresses a few closely related issues:
• It declares harassment to be discrimination;
• It considers unequal pay for equal work, or unequal pay for work of equal
value, that is based on any listed or arbitrary ground, to be a form of unfair
discrimination;
• It regulates the testing (both medical and psychological) of employees.
• It also provides for the procedure to follow in pursuit of a claim for unfair
discrimination.
 DIFFERENTIATION
• Means that an employer treats employees or applicants for employment differently
or that the employer uses policies or practices that exclude certain groups of
employees;
• For example, differential treatment exists when one applicant for a job is appointed
and another is not; or
• When one employee is promoted and over another.
• An employer could have compelling and very good reasons to treat employees
differently or to implement these policies or practices;
• The employer might argue that it appointed a specific applicant because he or she
was the best qualified and had the most experience; or
• That it promoted an employee because of that employee’s performance over a
certain period of time; or
• An employer might believe that an educational qualification is directly linked to a
prospective employee’s capacity to do an advertised job.
 DISCRIMINATION
• Although the existence of differentiation is a precondition for discrimination,
differentiation cannot simply be equated with discrimination;
• Differentiation only becomes discrimination when the differentiation is made
for an unacceptable reason;
• These unacceptable reasons include all the grounds of discrimination listed in
section 6(1) of the EEA;
• A reason not listed in section 6(1) may provide the basis for a claim of
discrimination; How?
 DISCRIMINATION THAT IS UNFAIR
• Not all discrimination is necessarily unfair discrimination;
• Employers will inevitably at times discriminate against employees;
• Allowance must be made for permissible discrimination – where an
employer, within legally defined limits, is able to justify the discrimination;
How?
• Discrimination only becomes unfair in legal terms if no justification for the
discrimination exists.
 THE TEST FOR UNFAIR
DISCRIMINATION
• The distinction between differentiation, discrimination and unfair
discrimination as explained by the Constitutional Court in Harksen v Lane:

If [the differentiation is] on a specified ground, then unfairness is

presumed. If on an unspecified ground, unfairness will have to be
established by the complainant. The test of unfairness focuses primarily
on the impact of the discrimination on the complainant and others in
his or her situation. If, at the end of this stage of the enquiry, the
differentiation is found not to be unfair, then there will be no violation.
 THE TEST FOR UNFAIR
DISCRIMINATION: STAGE 1
• Stage 1: Establishing discrimination
• Discrimination can be established in two ways, by linking differentiation (in
treatment or effect) in the workplace with:
• One of the listed grounds of discrimination; or
• A so-called unlisted (“arbitrary”) ground of discrimination.
• It is not relevant, for determining the existence of discrimination, whether the
employer was at fault.
 THE TEST FOR UNFAIR
DISCRIMINATION: STAGE 2
• Stage 2: Determining the fairness or otherwise of discrimination
• The basic principles regarding the fairness or unfairness of discrimination are
as follows:
• If an employee is successful in linking differentiation with a listed ground, this is
not only discrimination, but the discrimination is also presumed to be unfair;
• The onus then shifts to the employer to show that the discrimination was fair;
• If an employee is successful in linking differentiation with an unlisted ground, this
is regarded as discrimination the onus rests with the employee to show that the
discrimination was unfair;
• The EEA provides the employer with two possible defences or justification
grounds against a claim of unfair discrimination.
 BURDEN OF PROOF FOR UNFAIR
DISCRIMINATION
• Section 11 of the EEA
(1) If unfair discrimination is alleged on a ground listed in section 6(1), the
employer against whom the allegation is made must prove, on a
balance of probabilities, that such discrimination –
(a) did not take place as alleged; or
(b) is rational and not unfair, or is otherwise justifiable.
(2) If unfair discrimination is alleged on an arbitrary ground, the
complainant must prove, on a balance of probabilities, that –
(a) the conduct complained of is not rational;
(b) the conduct complained of amounts to discrimination; and
(c) the discrimination is unfair.
 JUSTIFYING UNFAIR
DISCRIMINATION
• The EEA and the LRA mention the following three possible defences to unfair
discrimination:
• Affirmative action consistent with the purpose of the EEA;
• Distinguishing, excluding or preferring any person on the basis of an inherent
requirement of the job; and
• The normal or agreed retirement age.
 THE AFFIRMATIVE – ACTION
DEFENCE
• South African Police Service v Solidarity obo Barnard;
The facts:
The applicant, Captain Barnard, a white woman, applied for the position of
Superintendent in the South African Police Service (SAPS). She received the highest
score amongst all applicants interviewed, and the interview panel recommended her
appointment. However, the Divisional Commissioner rejected the recommendation
because he believed that her appointment would not improve representivity since
black men and women were under-represented in the division concerned. The post
was withdrawn and the position left unfilled. Six months later the position was re-
advertised, and the applicant again applied. As during the first round, the applicant
obtained the highest score and the panel recommended her as the most suitable
candidate for the position. This time the Divisional Commissioner accepted the panel’s
recommendation to appoint the applicant, but the National Commissioner rejected
the recommendation. The National Commissioner pointed out that the appointment
of the applicant would not enhance representivity, and that the position was not
critical to service delivery. The post was again withdrawn and subsequently re-
advertised. This time the applicant did not apply. She referred the matter to the
CCMA, alleging unfair discrimination on the basis of race, a listed ground.
• What was the courts decision?
 THE INHERENT REQUIREMENTS OF
THE JOB DEFENCE
• An inherent requirement is a personal or physical characteristic that an
employee needs to have in order to be able to perform the essential
functions of the job;
• It must be genuinely required and not merely discrimination by the employer in
another form. For example, it could be argued that the following are examples
of justifiable discrimination:
• A Vietnamese restaurant only employs Vietnamese waiters to ensure that it is
seen as an authentic Asian restaurant;
• A gay bar only employs bartenders who are gay;
• A Catholic school seeks to appoint a principal who is Catholic.
 THE INHERENT REQUIREMENTS OF
THE JOB DEFENCE
• Inherent job requirements are not defined in the EEA, so it has been up to the Labour
Court to interpret the phrase’s meaning;
• The few South African cases where the courts have dealt with this concept include:
• Woolworths (Pty) Ltd v Whitehead, in which the Labour Appeal Court held that an
employer’s requirement that an employee work for at least 12 months was an
inherent requirement of the job (the decision considered the non-appointment of a
pregnant employee to have been fair under the circumstance
• Hoffmann v South African Airways, in which the Constitutional Court found that
being HIV-negative is not an inherent requirement of the job of a cabin attendant
(the applicant, who was HIV-positive, was not appointed to the position of flight
attendant when his HIV-status became known to the respondent (SAA) during a final
medical examination).
 THE INHERENT REQUIREMENTS OF
THE JOB DEFENCE
• Independent Municipal and Allied Workers Union v City of Cape Town, in
which the Labour Court held that not being dependent on insulin is not an
inherent requirement of the job for the position of fire fighter in a
municipality, there was no basis for the rule excluding insulin-dependent
diabetics from firefighting-positions and the blanket ban amounted to unfair
discrimination in terms of the EEA.
• Dlamini v Green Four Security, in which the Labour Court found that
employees, who were followers of the Nazarene faith, were not unfairly
dismissed for refusing to shave or trim their beards and that the employer’s
policy that security guards should be clean-shaven was justified as an
inherent requirement of the job and did not constitute unfair discrimination.
 DIRECT VERSUS INDIRECT
DISCRIMINATION: DIRECT
DISCRIMINATION
• Direct discrimination occurs when one employee is treated differently from
another based on a personal or physical characteristic, discrimination on the
basis of which is prohibited in law (for example race, gender or disability)
and which puts that employee at a disadvantage in relation to the other.
• Stereotyping is an example of direct discrimination because it attributes
certain generalised assumptions to individuals based on the group to which
they belong (for example, all women get married and need time off to have
children).
• IMATU v City of Cape Town, the City of Cape Town;
 DIRECT VERSUS INDIRECT
DISCRIMINATION: DIRECT
DISCRIMINATION
• Direct discrimination is easy to recognise;
• It occurs where a differentiation or distinction between employees is based
on one or more of the criteria listed in section 6(1) of the EEA or on a ground
not specifically mentioned in the section (“arbitrary” ground), but that
passes the test in Harksen v Lane.
• For example, a female employee is paid less than a male employee who does
the same work.
• A claim of direct discrimination can also be based on a so-called arbitrary or
unlisted ground.
 DIRECT VERSUS INDIRECT
DISCRIMINATION: INDIRECT
DISCRIMINATION
• Indirect discrimination refers to policies and practices that do not explicitly
distinguish between people on the basis of any prohibited ground, but nonetheless
have a discriminatory effect on particular groups or individuals;
• The following examples of indirect discrimination are taken from the case law of
various jurisdictions around the world:
• Setting minimum height and weight requirements for employment as prison guards
has a disproportionate impact on women;
• Requiring applicants to have previous experience for a position has a
disproportionate impact on women;
• A no-beard rule for fire fighters has a disproportionate impact on black male
employees because of the increased likelihood that black males may suffer from a
skin condition that makes shaving uncomfortable;
• Paying part-time workers a lower hourly rate than full-time workers has a
disproportionate impact on women.
 APPLICATION OF UNFAIR
DISCRIMINATION PROVISIONS
• To whom do the unfair discrimination provisions apply?
• Section 6 of the EEA protects “an employee” against unfair discrimination.
The EEA defines “employee” in exactly the same manner as do the LRA and
the BCEA, but unlike these two statutes, no presumption is included.
• In addition, the EEA expressly includes an “applicant for employment” under
the protection against unfair discrimination.
• Note that section 6(1) of the EEA does not explicitly aim the prohibition of
unfair discrimination at an “employer”; it refers to “no person”.
• Which includes an employer, but could also includes, for example, pension funds
or other employees.
 CASES

The Affirmative –Action defence

• South African Police Service v Solidarity obo Barnard(page 69)

The Inherent – Requirements of the Job defence

• Woolworths (Pty) Ltd v Whitehead (Page 71)
• Hoffmann v South African Airways (Page 71)
• Independent Municipal and Allied Workers Union v City of Cape Town (Page
71)
• Dlamini v Green Four Security (Page 71)
 THE MEANING OF EMPLOYMENT
POLICY AND PRACTICE
• Section 6(1) of the EEA prohibits unfair discrimination (whether direct or
indirect) if the discrimination takes place in any “employment policy or
practice”. An employment policy or practice includes (in other words, it is
not limited to) one or a combination of the following:
• recruitment procedures, advertising and selection criteria;
• appointments and the appointment process;
• job classification and grading;
• remuneration, employment benefits, and terms and conditions of employment;
• job assignments;
• the working environment and facilities;
 THE MEANING OF EMPLOYMENT
POLICY AND PRACTICE
• training and development;
• performance evaluation systems;
• promotion;
• transfer;
• demotion;
• disciplinary measures other than dismissal; and
• dismissal (although disputes about discriminatory dismissals are to be channelled
via the LRA
 HARASSMENT AS A FORM OF
UNFAIR DISCRIMINATION
• The EEA (in section 6(3) of the EEA) declares the harassment of an employee or job
applicant to be a form of unfair discrimination;
• Harassment is prohibited if it is based on any one (or a combination of) the listed
grounds;
• Sexual harassment, racial harassment, sexual-orientation harassment and religious
harassment;
• Sexual harassment is unwelcome conduct of a sexual nature that violates the rights
of an employee and constitutes a barrier to equity in the workplace, taking into
account all of the following factors:
• whether the harassment is on the prohibited grounds of sex and/or gender and/or
sexual orientation;
• whether the sexual conduct was unwelcome;
• the nature and extent of the sexual conduct; and
• the impact of the sexual conduct on the employee.
 HARASSMENT AS A FORM OF
UNFAIR DISCRIMINATION
• An employer may also be held liable for the sexual harassment committed
by one of its employees. The EEA makes the employer legally liable for acts
of discrimination (including acts of harassment) committed by employees
under the following circumstances:
• If the act of discrimination is committed while at work;
• If the conduct is brought to the attention of the employer;
• If the employer fails to consult all the relevant parties and take the necessary
steps or steps that were “reasonably practicable” in the circumstances to
eliminate the harassment.
 HARASSMENT AS A FORM OF
UNFAIR DISCRIMINATION
• Employers should be proactive about putting in place steps to prevent
harassment;
• If harassment does happen, employers must make sure that the issue is dealt
with in a speedily and serious manner, by:
• Ensuring that there is a clear workplace policy prohibiting sexual harassment;
• Ensuring that grievance and disciplinary procedures exist to effectively deal with
such conduct;
• Dealing with complaints timeously and sensitively; and
• Complying with the 2005 Amended Code of Good Practice on the Handling of
Sexual Harassment Cases in the Workplace.
 EQUAL PAY
• Section 6 of the EEA:
(4) A difference in terms and conditions of employment between
employees of the same employer performing the same or substantially
the same work or work of equal value that is directly or indirectly based
on any one or more of the grounds listed in subsection (1), is unfair
discrimination.
(5) The Minister, after consultation with the Commission, may prescribe the
criteria and prescribe the methodology for assessing work of equal
value contemplated in subsection (4).
 EQUAL PAY
• “Same work” means the work done by an employee is identical to or
interchangeable with the work of another employee;
• “Substantially the same work” means the work performed by one employee is
sufficiently similar to the work done by another employee;
• “Work of equal value” means that two significantly different jobs are accorded the
same value based on a number of criteria. In order to determine whether two
different jobs have the same value, they have to be objectively assessed based on
the following criteria:
• the amount of responsibility required;
• the skills and qualifications required;
• the physical, mental and emotional effort required;
• the conditions under which the work is performed, including physical, environmental,
and psychological conditions; and
• any other factor indicating the value of the work, provided it can be shown to be
relevant.
 RESTRICTIONS ON MEDICAL
TESTING OF EMPLOYEES
• The EEA prohibits medical testing of any employee or job applicant unless:
• The testing is permitted or required in terms of legislation (for instance, the
Occupational Health and Safety Act 85 of 1993); or
• The testing is justified in the light of medical facts, employment conditions,
social policy, the fair distribution of employee benefits or the inherent
requirements of a job;
• Testing includes any test, question or enquiry designed to ascertain an
employee’s medical condition and provide an employer with information on
an employee’s health or clinical status, including genetic screening,
disability-related examinations and tests to establish (illegal) drug and
alcohol dependency.
• Testing for HIV/Aids?
 RESTRICTIONS ON PSYCHOLOGICAL
TESTING OF EMPLOYEES
• In terms of the EEA, psychological testing and other similar assessments are
prohibited, unless the test or assessment:
• Is scientifically valid and reliable;
• Can be applied fairly to all employees or job applicants, and is not biased in favour
of or against any employee or group;
• Psychological tests may include:
• intelligence and aptitude tests;
• work sample tests;
• psychological and personality inventories;
• honesty tests;
• role-playing exercises; and
• physical fitness tests.
• They are controversial in that they may be culturally biased and may discriminate
against members of certain racial groups or against women.
 THE AFFIRMATIVE ACTION CLAUSE
• Historical discrimination necessitates measures to address the inequities of
the past;
• Equality also involves equal enjoyment of all rights and freedoms in the
workplace, not only in society;
• Women and black people were not afforded the same benefits as white
men;
• Affirmative action is the measure introduced by law to create equal
opportunities in the workplace for all people of South Africa;
• Affirmative action seeks to overcome institutionalized discrimination;
 AFFIRMATIVE ACTION MEASURES
• Designated employers are required to:
• Implement affirmative action measures;
• Ensure equitable representation of people from designated groups in all
occupational categories and levels of the workforce;
• Consult with employees on a range of matters related to employment
equity;
• Conduct an analysis of its employment policies, practices, procedures and
the working environment in order to identify employment barriers;
• Prepare an employment equity plan; and
• Report either annually of bi-annually to the DG of the Department of Labour,
on the progress of implementing the employment equity plan.
 AFFIRMATIVE ACTION
MEASURES
• Affirmative action provisions only apply to designated employers and
designated groups;
• What do you think the purpose of affirmative action measures are?
• To ensure that suitably qualified persons from designated groups have
equal employment opportunities are equitably represented at all
occupational levels ;
• Criteria for determining whether a person is suitably qualified
(section 20(3) of the EEA):
• Formal qualifications;
• Prior Learning;
• Relevant Experience; or
• The ability to acquire, within a reasonable time, the ability to do
the job;
 AFFIRMATIVE ACTION MEASURES
• Affirmative action measures include:
• Measures to identify and eliminate employment barriers;
• Measures designed to further diversity in the workplace;
• Making reasonable accommodation for people from designated groups in
order to ensure that they enjoy equal opportunities and equitable representation
in the workplace;
• Measures to ensure the equitable representation of suitably qualified people
from designated groups at all occupational levels;
• Measures to retain and develop people from designated groups and to
implement appropriate training measures;
 EMPLOYMENT EQUITY PLAN
• A designated employer must prepare and implement an employment equity plan;
• Amongst other things, the plan must include:
• Numerical goals to be achieved for each year of the plan;
• The affirmative action measures to be implemented;
• The numerical goals to achieve the equitable representation of suitably qualified
people from designated groups within each occupational level;
• The timetable for each year of the plan for the achievement of objectives other than
numerical goals;
• The duration of the plan; and
• Procedures for monitoring and evaluating the plan and whether reasonable progress
is being made;
• The internal dispute resolution procedures to resolve disputes about the
interpretation or implementation of the plan;
• Persons (including senior managers) responsible for monitoring and implementing the
plan.
 DUTIES OF DESIGNATED
EMPLOYERS

Report to the
Prepare and
Consult with Conduct a staff Director – General
implement an
his/her analysis or staff on progress made
employment
employeees audit in implementing
equity plan
the plan
 COMMISSION FOR EMPLOYMENT
EQUITY
• The EEA makes provision for the establishment of the Commission for
Employment Equity (CEE);
• Composition of the (CEE);
• It is essentially an advisory body, which advises the Minister on various
matters.
COLLECTIVE BARGAINING AND
INDUSTRIAL ACTION;
pages 189 -193;
194 -210; Plus
Additional
readings on
blackboard.