The Employment Equity (EE) Act exists for one clear reason: to eliminate discrimination and implement transformation. But to comply with the EE Act, you first need to understand what discrimination is, and when it may be considered fair.
Unfair discrimination happens when a person is treated differently in the workplace or during the recruitment process based on factors unrelated to their ability to do the job.
The EE Act states that discrimination may not take place on grounds of race, gender, sexual orientation, pregnancy, marital status, family responsibility, ethnic or social origin, colour, age, disability, religious belief, political opinion, language, or HIV status. These protections apply to all aspects of employment, including recruitment, advertising, job grading, promotions, transfers, training, and disciplinary measures.
For example, it will be perceived as discriminatory against certain groups when there is unequal pay for equal work, or when someone with a positive HIV status is denied any job or training opportunities.
However, not all discrimination is prohibited. There is such a thing as fair discrimination. This occurs in two situations:
- Affirmative action measures in line with the Sectoral Targets as set out in Section 15A of the EE Act – to address barriers hindering a workplace from equitable representation, this includes incorporating various training initiatives aimed at advancing specific groups where underrepresented.
- Inherent job requirements, where a specific characteristic is essential to fulfil the specific roles and responsibilities, such as having a valid driver’s license for a delivery driver position.
It is important to take note that a dispute resolution mechanism should be included in the EE Plan. The purpose of a dispute resolution mechanism is to ensure a formal process takes place to actively resolve EE-related matters where, in some cases, employees and/or union shop stewards identify barriers. In the event that certain employees feel discriminated against, the mechanism should provide a clear and accessible procedure for lodging complaints, investigating concerns, and implementing corrective measures in a fair and timely manner.
Understanding the difference between fair and unfair discrimination is an important factor to ensure that a workplace becomes inclusive, equitable, and legally compliant.
