Employment Equity Act 55 of 1998

1. Employment Equity Act 55 of 1998

2. . • South African Airways Applications for vacant position required: POSITION: Flight attendant DUTIES: Serve passengers; Ensure flight procedures are met REUIREMENTS: • The successful applicant must: • be female; • have matric/higher qualification; • be between the ages of 18 & 30; • be fluent in Xhosa; • be between 1.5 & 1.7 m tall; • weigh less than 60kg. These notes are insufficient for study purposes.

3. Bill of Rights, Chapter II of the Constitution • Dramatic changes effected over the last few years • Constitutional equity as per section 9 of the Constitution need to be kept in mind when studying this section of the work • Study section 9 of the Constitution- see the handbook. • Two prime rights: • Right to equality. • Right not to be discriminated against. These notes are insufficient for study purposes.

4. Do not get confused: • Section 9 of the Constitution guarantees: • Equality before the law– applicable to all Employees and Employers (and job seekers). • Affirmative action provisions – applicable only to certain employers and applies to certain categories of people. • Know the exceptions and to whom these two sections and the Act apply! These notes are insufficient for study purposes.

5. Constitution of South Africa, s9:Equality • (1) Everyone is equal before the law and has the right to equal protection and benefit of the law. • (2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken. • Historically discrimination occurred and measures are required to address the inequalities of the past. • Equal opportunities in the workplace must be ensured. • Is Affirmative Action “reverse discrimination”? • Affirmative Action = positive action to overcome institutionalized discrimination. These notes are insufficient for study purposes.

6. (3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. • (4) No person may unfairly discriminate directly or indirectly against anyone on one ore more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination. • Discrimination = treating people differently. • Fair discrimination?? YES think of job applications and vacancies. • Unfair discrimination = treating people differently on an arbitrary ground/inappropriate criteria to differentiate between persons. • Direct discrimination: • Discrimination on grounds listed but not limited thereto. • When persons belong to a certain category. • Indirect discrimination: • Neutral criteria is used to differentiate or exclude. These notes are insufficient for study purposes.

7. Requirement for discrimination: • Differentiation between listed and unlisted grounds: Be careful: • Burden of proof: • Discrimination on listed grounds: • Presumption that the discrimination is unfair. • Respondent must show it is not unfair.(employer must prove that discrimination is fair) • Discrimination on unlisted grounds: • Applicants must prove there was discrimination and that it was unfair. These notes are insufficient for study purposes.

8. (5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair. • ILO defines discrimination as: “… any distinction, exclusion or preference… which has the effect of nullifying or impairing equality of opportunity or treatment in employment and occupation… and any distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination.” • General definition of unfair discrimination: “…use of irrelevant criteria to distinguish between individuals or groups, which has the purpose/effect of less favourable consequences for members of a group in relation to those of another.” • Two (2) forms of discrimination are not considered unfair and consequently allowed; • Affirmative action. • Differentiation based on inherent requirements of a job. These notes are insufficient for study purposes.

9. Objectives of the Employment Equity Act • To achieve equality through promotion of equal opportunities and fair employment practices. • Elimination of unfair discrimination through affirmative action measures. • To ensure equitable representation in all occupational categories and levels. • Designated employers must take measures to reduce disproportionate differentials. These notes are insufficient for study purposes.