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EE changes: What should you worry about? (Part 1)

Helen Wilsenach

Recently, the Employment Equity Amendment Bill was published for comment. The proposed amendments, which have everyone talking, are those dealing with unfair discrimination, affirmative action, and equal pay for equal work. Today, we’ll have a look at what the proposed unfair discrimination rules say. In the coming weeks, we will discuss the planned affirmative action laws, equal pay for equal work or work of equal value, and the changes regarding the treatment of sexual harassment cases and testing.

Unfair discrimination: The current situation

According to the Employment Equity Act in its current format:

  • No one may directly or indirectly discriminate against an employee or job applicant, in any employment policy or practice, based on:

-    Race;

-    Gender;

-    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.

But remember: If you apply affirmative action measures, or happen to reject a person because he doesn’t have a skill that is an inherent requirement of the job, this is not classified as unfair discrimination. For example, you are perfectly entitled not to hire a male actor to play the role of a mother because it is an inherent requirement of the job that the actor be female.

What are the proposed changes to the unfair discrimination clause?

The government is proposing that this section in the act is broadened to prohibit unfair discrimination on “any other arbitrary ground”. This is in line with the definition of unfair discrimination in the section of the Labour Relations Act dealing with automatically unfair dismissals.

How could this affect you?

Currently, whenever someone alleges unfair discrimination, the employer must establish that its conduct was fair.

Going forward, however, the employer would still need to do this if the alleged unfair discrimination was based on one of the grounds set out in the Act, e.g. race, gender and sexual orientation, etc. If the alleged discrimination is indeed based on one of these grounds:

  • The employer must prove, on a balance of probabilities, that:

- The alleged discrimination did not take place as it was supposed to have done;

- The alleged discrimination is rational, fair and justifiable.

But remember that according to the Bill, if the alleged unfair discrimination is based on an arbitrary ground, and not one listed in the Act, the burden of proof shifts. The complainant, i.e. the employee or job applicant, must then prove, on a balance of probabilities, that:

  • The conduct complained about is not rational;

  • The conduct complained about amounts to discrimination; and

  • The discrimination is unfair.

The proposed Bill can be found at:




EE changes: What should you worry about? (Part 1)

Helen Wilsenach is a partner in the employment department of Bowman Gilfillan. Since being admitted as an attorney and notary public, Helen has specialised in employment law and has 10 years experience in this area of the law. She advises mainly employers (both local and international) on a range of issues, including the employment consequences of commercial transactions, restructurings, dismissals, employment contracts, policies and procedures, training, employment equity and discrimination.