Mallinicks

The Employment Equity Act

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THE EMPLOYMENT EQUITY ACT HAS BEEN IN OPERATION SINCE 1999. THE AIM OF THE ACT IS TO PROMOTE EQUITY (IE FAIRNESS) IN THE WORK ENVIRONMENT. THE INTRODUCTION TO THE ACT SETS OUT THE THINKING BEHIND THE ACT: BECAUSE OF APARTHEID AND OTHER DISCRIMINATORY LAWS AND PRACTICES IN SOUTH AFRICA, TODAY THERE ARE SERIOUS INEQUALITIES IN EMPLOYMENT, OCCUPATION AND INCOME. THESE INEQUALITIES ARE SUFFERED SO SEVERELY BY CERTAIN CATEGORIES OF PEOPLE THAT IT IS NOT ENOUGH SIMPLY TO REPEAL (IE TAKE AWAY) THE DISCRIMINATORY LAWS - INSTEAD, POSITIVE STEPS ARE REQUIRED TO PUT RIGHT THE INEQUALITIES. THE ACT AIMS TO ACHIEVE EQUITY IN THE WORKPLACE IN TWO MAJOR WAYS - BY ELIMINATING UNFAIR DISCRIMINATION AND BY IMPLEMENTING AFFIRMATIVE ACTION.

THE PROHIBITION OF UNFAIR DISCRIMINATION
See also Summary of Basic Conditions of Employment Act


This part of the Act applies to all employers. The Act says that all employers must take steps to promote equal opportunity in the workplace by elimininating unfair discrimination. The Act also says that no-one may unfairly discriminate against an employee or someone applying for a job on grounds such as race, sex, whether a person is pregnant or not, whether a person is married or not, a person's family responsibilities, ethnic or social origin, sexual orientation (ie whether a person is straight or gay), age, disability, religion, HIV status, political opinion and language. Harassment of an employee on one of these grounds is a form of unfair discrimination.

Therefore if an employee is harassed at work about the fact that he is.for example gay, or black, or Afrikaans speaking, these would all be forms of unfair discrimination. If someone is due for a promotion at work and the promotion is not given because she is, for example, HIV-positive, or pregnant, this is unfair discrimination.

The Act spells out that it is not unfair discrimination to exclude or prefer a person where the inherent requirements of a job make it necessary to do so. So if an employer needs to appoint someone who can do translations from Xhosa into Afrikaans, the employer is entitled to exclude job applicants who do not have the necessary language skills - this may be discrimination on the basis of language, but it is not unfair discrimination.

AFFIRMATIVE ACTION

This part of the Act only applies to certain employers, including employers who have more than 50 employees or who have a turnover above a certain threshold, municipalities and most branches of the government. An employer who is not required to comply with this part of the Act may comply voluntarily and should let the Director-General of the Department of Labour that he or she is doing so.

The Act says that every employee must put in place affmnative action measures for black people, women and people with disabilities. (The Act makes it clear that "black" includes African, Coloured and Indian.) Affirmative action measures are designed to ensure that, in the employer's workforce, suitably qualified black, female and disabled people have equal employment opportunities. They must also be fairly represented in the various occupational categories and levels; it is not enough to have black female cleaning staff and white male managers - there must be a fair spread at different job levels.

Every employer must also put in place an employment equity plan which sets out, amongst other things -

The Act also says that employers must comply with a number of reporting requirements and must carry out consultations with employees relating to affmnative action. Bar

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