Section 6 of the Employment Equity Act 55 of 1998 (“Act”) is the cornerstone of the prohibition against unfair discrimination in the workplace. Section 6 prohibits direct and indirect unfair discrimination against an employee and in any procedure or policy on the listed grounds of race, gender, sex, pregnancy, marital status, family responsibility, ethic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, birth or any other arbitrary ground.

The word discrimination is not defined by the Act and the common test used by the judiciary in establishing whether there has been an incident of discrimination is two-fold. Firstly, one must ask: “is there an incident of differentiation against the employee”? Secondly, if the answer to the first question is “yes”, the next question would be “does that differentiation amount to discrimination, in other words, is the differentiation unfair”?

What constitutes unfair discrimination? The Act says that discrimination is not unfair in instances of affirmative action measures and in instances wherein the discrimination is based on an inherent requirement of the job. Therefore, differentiation based on distinctions, such as a candidate’s experience or qualification would not amount to discrimination. However, it would constitute unfair discrimination if a differentiation is not based on an objective, reasonably justifiable ground and the outcome of the differentiation prohibits enjoyment of equality.

Section 6(2)(b) of the Act prescribes that it is not unfair to discriminate when the distinction is made based on affirmative action measures. Any affirmative action measures should be consistent with the purpose of the Act and a number of factors including inter alia regional demographics and designated groups must be taken into account. The purpose of implementing affirmative action measures is necessary to redress the disadvantages in employment, experienced by designated groups, in order to ensure their equitable representation in all occupational levels in the workplace.

Further to affirmative action measures section 6(2)(b) of the Act also prescribes that it is not unfair to discriminate when a distinction is made based on inherent requirements of the job. This can be described as activities that are essential core characteristics of the job and are necessary for the fulfilment of a position. For example, if the job was an acting position for a television programme which required a senior, white female, you would not consider applications from middle aged, African males. That would be described as “not unfair” discrimination based on an inherent requirement of the job. However, if the position for a call centre clerk arises and the job involves occasional printing, photocopying and filing and an applicant has a disability, he or she should not be disqualified from the position because they cannot fulfil a marginal requirement such as photocopying and the employer should take steps to provide reasonable accommodation to the prospective employee. Photocopying, printing and filing is not inherent to the fulfilment of a role as call centre agent. However, if the applicant was deaf, it would justify disregarding the applicant, as it is an inherent requirement of a job in a call centre, to be able to hear over the telephone.

Thus, it is important for an employer to note that you are prohibited from discriminating against employees or applicants based on the listed grounds in Section 6 of the Act, or any arbitrary grounds. However, there are instances, such as affirmative action and inherent requirements of the job, wherein the differentiation between staff or potential employees is not unfair.

22 October 2018