Employment Equity Act No 55 of 1998 (81)

Purpose of EE Act (81) Redress past discrimination –Eliminate unfair discrimination [applies to all employers] –Proactively advance workers previously discriminated against, via affirmative action [applies to designated employers and employees from designated groups ] –Seeking equitable representation of workers in all job categories

Chapter II –Prohibition on Unfair Discrimination (82) Prohibits all unfair discrimination, including: –Recruitment procedures –Advertising –Selection criteria –Remuneration –Training etc etc

Unfair discrimination cont. Direct or indirect discrimination prohibited Unfair discrimination – means different treatment of employees on an arbitrary ground ‘intention’ not a requirement Indirect discrimination – appears neutral, but is not – eg – height as a pre-requisite, women disadvantaged

Interviews ito EE Act (85) Recruitment and interviews to be free of discrimination Cannot discriminate against applicants on basis of, amongst others: –Race, gender, pregnancy, family responsibility, sexual orientation, age, religion, HIV status, etc

Interviews cont Can lawfully differentiate if: Affirmative Action – black before white, woman before man, disabled over physically fit – so employer can make up its numbers if they are in deficit Age – if at retirement age, need not employ Inherent requirements of the job – competency – and commercial rationale

Interviews cont (86) DO’s: id requirements of the job and ask questions on those requirements –eg –What languages do you speak? –Drivers Licence? –Computer skills? –Competency level id those competencies easy to learn id level of competency needed for the job Prepare relevant questions You have to give reasons to unsuccesful applicants if requested to do so

Interviews cont DO NOT: –Ask irrelevant questions unrelated to the job eg sexual orientation, as it will be blamed for non appointment –Ask indirectly discriminatory questions – eg – area candidate lives in?

Harassment Code of Good Practice re Handling Sexual Harassment has been published ‘sexual harassment’ may include - physical contact, suggestions, hints, inquiries about sex life, unwelcome display of sexually explicit pictures etc Ahmod/Defy Appliances [2004]*13 Nehawu obo Zulu/dept Health [2004] *13

Harassment cont. ‘quid pro quo harassment’ aims to influence promotion etc for favours Ignoring an employee – if no favours forthcoming Dismissing an employee once affair is over.

Harassment cont Management needs to actively prevent sexual harassment in the workplace – issue policy statements and procedures –Employees to know they can lodge a grievance –Education programmes emphasised –Management to know the boundaries – and must take action immediately against any employee where needed –Dignity of individual to be emphasised

Harassment cont Options in resolving a complaint: –Informal – a quiet discussion –Formal investigation – need to ensure confidentiality – limit those involved –CCMA –Labour Court –can order compensation, see Ntsabo v Real Security 2003 *4 Grobler v Naspers 2004 * 5

Medical testing Prohibited unless other legislation permits it HIV testing prohibited unless: – labour court orders – voluntary and anonymous Code of Good Practice on HIV/AIDS and employment

Affirmative Action -Plan and Report The report The plan Income differential