Employment Equity is a factor that many South African job seekers deal with whilst looking for employment. The purpose of the Employment Equity Act, 55 of 1998 is to achieve a diverse workforce which is broadly representative of all designated groups and to eliminate unfair discrimination in employment.
Unfair discrimination in the Employment Equity Act, applies to both job applicants as well as employees. Section 6 of Chapter 2 states the following:
6. (1) No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, sex, 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.
(3) Harassment of an employee is a form of unfair discrimination and is prohibited on any one, or a combination of grounds of unfair discrimination listed in subsection (1).
There is however a difference between fair and unfair discrimination. Subsection (2) states:
(2) It is not unfair discrimination to:
(a) take affirmative action measures consistent with the purpose of the EEA
(b) distinguish, exclude or prefer any person on the basis of inherent job requirements.
Affirmative Action, in terms of the Employment Equity Act, is fair discrimination as it addresses the imbalances of the past. However, affirmative action needs to be implemented fairly and according to the Employers Employment Equity plan. These measures should not include absolute barriers to prospective or continued employment, or to the advancement of people who are not from designated groups. All applicants should have an opportunity to apply for a position and preference can be given to an applicant from a designated group who is suitably qualified.
Discrimination based on inherent job requirements, is also fair discrimination according to the Employment Equity Act. The Code of Good Practice of Employment Equity describes essential job requirements as the skills, knowledge or experience that are necessary to perform a job.
Suitably qualified candidates from designated groups should have equal opportunities according to Section 15, Chapter 3 of the Act, therefore affirmative action measures are not required to be applied to applicants who are not suitably qualified for the position. Employers need to take into account the applicants formal qualification; prior learning; relevant experience; or the capacity to acquire, within a reasonable time, the ability to do the job but cannot discriminate based on only lack of relevant experience, unless it is an inherent job requirement.
Chapter 2 of the Employment Equity Act also protects job applicants and employees against unfair medical and psychometric testing. The Act states that medical testing is prohibited unless (a) legislation permits or requires the testing; (b) it is justifiable in the light of medical facts, employment conditions, social policy, the fair distribution of employee benefits or the inherent requirements of the job. Testing an employee to determine HIV status is also prohibited unless the testing is justifiable as ruled by the Labour Court.
Psychological testing and other similar assessments are also prohibited unless the test or assessment (a) has been scientifically shown to be valid and reliable; (b) can be applied fairly to all employees; (c) is not biased against any employee or group.
The Act aims to protects the rights of employees and job applicants and to provide the framework for fair employment practices in South African workplaces.