U4 ch6

Question 1

What does Section 9 of the Constitution provide regarding equality?

Answer 1

Everyone is equal before the law, and no person may unfairly discriminate on grounds such as race, gender, etc.

Question 2

What does the Labour Relations Act (LRA) prohibit regarding dismissal?

Answer 2

The LRA prohibits an employer from dismissing an employee on the same grounds mentioned in the Constitution, such as race or gender.

Question 3

What is the main purpose of the Employment Equity Act (EEA) 55 of 1998?

Answer 3

To remedy imbalances in workplace representation caused by past unfair discrimination.

Question 4

What two methods does the EEA apply to achieve equity?

Answer 4

1) Prohibiting discrimination on arbitrary grounds (Chapter II), and 2) Promoting affirmative action for women, black people, and people with disabilities (Chapter III).

Question 5

What is the purpose of the EEA as per Section 2?

Answer 5

(a) Promote equal opportunity and fair treatment in employment, and (b) Implement affirmative action to ensure equitable representation of designated groups.

Question 6

What does Section 6(1) of the EEA prohibit?

Answer 6

Unfair discrimination, directly or indirectly, against an employee or applicant based on grounds such as race, gender, disability, or HIV status.

Question 7

What does Section 6(2) of the EEA state about affirmative action?

Answer 7

It is not unfair discrimination to take affirmative action measures consistent with the purposes of the EEA.

Question 8

What is the significance of “inherent requirements of a job” in terms of discrimination?

Answer 8

It is not considered unfair discrimination to distinguish or prefer someone based on the inherent requirements of a job (Section 6(2)).

Question 9

How does the EEA handle the burden of proof in discrimination cases?

Answer 9

For listed grounds, the employer must prove the discrimination was fair. For unlisted (arbitrary) grounds, the employee must prove that the discrimination occurred and was unfair.

Question 10

How is the term ‘employee’ defined in the EEA?

Answer 10

It includes both current employees and applicants for employment, but excludes independent contractors, the National Defence Force, and similar agencies.

Question 11

What responsibility does an employer have when an employee discriminates against another?

Answer 11

Under Section 60, the employer must take action when aware of discrimination, such as sexual harassment, between employees.

Question 12

What are the steps to establish unfair discrimination as per Harksen v Lane?

Answer 12

1) Determine if there was differentiation, 2) Check if the differentiation was based on a prohibited ground, and 3) Assess if the discrimination was unfair.

Question 13

What happens if the discrimination is based on a listed ground?

Answer 13

The discrimination is presumed unfair, and the employer must prove it was justifiable or fair.

Question 14

How is unfair discrimination proven when based on an unlisted (arbitrary) ground?

Answer 14

The employee must prove both the existence of discrimination and its unfairness.

Question 15

What is the difference between direct and indirect discrimination?

Answer 15

Direct discrimination is based on explicit differences (e.g., sex), while indirect discrimination arises from neutral practices that disproportionately affect certain groups.

Question 16

What does section 6(2) of the EEA provide regarding affirmative action?

Answer 16

It states that it is not unfair discrimination if an employer takes affirmative action measures consistent with the purpose of the EEA.

Question 17

Why is there a justification for affirmative action in section 6(2) of the EEA?

Answer 17

Without this justification, decisions to implement affirmative action measures could be regarded as unfair discrimination under section 6(1) of the EEA.

Question 18

What is the second ground for justifying discrimination under the EEA?

Answer 18

An employer may justify discrimination based on the inherent requirements of the job.

Question 19

What is meant by “inherent requirement of the job” according to the Labour Appeal Court in the TFD Network Africa v Faris case?

Answer 19

It is a permanent, indispensable attribute that must relate in an inescapable way to the performance of the job.

Question 20

What are the three examples of bona fide occupational requirements given in the US and UK?

Answer 20

1) Authenticity (e.g., a Japanese-themed restaurant requiring Japanese waiters)
2) Privacy and decency (e.g., requiring female nurses in a maternity hospital)
3) Safety (e.g., an airline pilot not having an eyesight disability).

Question 21

How does section 6(3) of the EEA relate to harassment?

Answer 21

Section 6(3) of the EEA states that harassment is a form of unfair discrimination and is thus prohibited.

Question 22

What does the 2022 Code of Good Practice on the Prevention and Elimination of Harassment define as harassment?

Answer 22

Unwanted conduct impairing dignity, creating a hostile work environment, and related to prohibited grounds of discrimination in section 6(1) of the EEA.

Question 23

What can happen to an employer who fails to act on a complaint of sexual harassment under section 60 of the EEA?

Answer 23

The employer may be deemed to have contravened the EEA if it did not take reasonably practicable steps to prevent the harassment.

Question 24

What is ‘constructive dismissal’ in the context of sexual harassment?

Answer 24

If an employee resigns because the employer rendered continued employment intolerable (by not addressing harassment), it may be regarded as constructive dismissal.

Question 25

What does section 6(4) of the EEA provide regarding equal pay?

Answer 25

It prohibits pay differences between employees performing the same or substantially the same work if those differences are based on unfair discrimination.

Question 26

What are some justifications for differential pay under the EEA’s equal pay provisions?

Answer 26

Seniority, length of service, skills, and qualifications, among others.

Question 27

What does section 7 of the EEA prohibit in terms of medical testing?

Answer 27

Medical testing is prohibited unless permitted by legislation or justified by medical facts, employment conditions, social policy, or inherent job requirements.

Question 28

Under what conditions is HIV testing of employees permitted according to section 50(4) of the EEA?

Answer 28

If the employee consents or if the Labour Court finds it justifiable and imposes conditions, such as maintaining confidentiality and providing counseling.

Question 29

What does section 7 of the EEA say about psychological testing?

Answer 29

Psychological testing is prohibited unless the test is scientifically valid, reliable, fairly applied, and not biased.

Question 30

Where are disputes under the EEA referred for conciliation?

Answer 30

They are referred to the CCMA for conciliation, and if conciliation fails, they can go to the Labour Court or arbitration if the parties consent.

Question 31

What compensation or orders may the Labour Court grant in unfair discrimination cases?

Answer 31

The Labour Court may award compensation, order damages, or require the employer to take steps to prevent future discrimination.

Question 32

What is the distinction between formal equality and substantive equality in the context of affirmative action?

Answer 32

Formal equality refers to the prohibition of discrimination, while substantive equality (or affirmative action) aims for equal outcomes by ensuring equitable representation of designated groups.

Question 33

What is the purpose of affirmative action under the EEA?

Answer 33

To ensure that suitably qualified people from designated groups have equal employment opportunities and are equitably represented across all occupational categories and levels

Question 34

How did the Constitutional Court rule in Minister of Finance v Van Heerden regarding affirmative action?

Answer 34

The court held that affirmative action does not create a presumption of unfair discrimination, as its purpose is to promote substantive equality in light of South Africa’s history.

Question 34

What must an employer demonstrate to justify affirmative action measures under section 9(2) of the Constitution?

Answer 34

The employer must show that the measures are designed to protect people previously disadvantaged by unfair discrimination to promote equality.

Question 35

What factors are considered in determining equitable representation under section 42 of the EEA?

Answer 35

The extent to which suitably qualified people from designated groups are represented in the workforce relative to the national and regional demographic profile of the economically active population.

Question 36

When is affirmative action no longer required?

Answer 36

When equitable representation is attained, as affirmative action is meant to restore imbalance caused by past discrimination.

Question 37

What does section 15 of the EEA require from designated employers?

Answer 37

They must apply affirmative action measures to ensure equitable representation of suitably qualified employees from designated groups, but they may not use quotas.

Question 38

What are sectoral numerical targets, and who sets them?

Answer 38

Sectoral numerical targets ensure equitable representation of designated groups at all occupational levels, and they are set by the Minister of Employment and Labour.

Question 39

Who are considered designated employees under the EEA?

Answer 39

Designated employees include black people (Africans, Coloureds, Indians, and persons of Chinese descent), women, and people with disabilities.

Question 40

What factors determine if a person is “suitably qualified” under the EEA?

Answer 40

Formal qualifications, prior learning, relevant experience, or the capacity to acquire the ability to do the job within a reasonable time.

Question 41

What is a ‘designated employer’ under the EEA?

Answer 41

A designated employer is one with 50 or more employees or any employer bound by a collective agreement or opting to be a designated employer voluntarily.

Question 42

What must designated employers consult about when developing an employment equity plan?

Answer 42

They must consult a representative trade union or employee representatives on workforce analysis, preparation, and implementation of the employment equity plan, and reporting progress.

Question 43

What analysis must a designated employer conduct under the EEA?

Answer 43

The employer must analyze employment policies, practices, procedures, and the working environment to identify barriers for designated groups and assess underrepresentation within the workforce.

Question 44

What must an employment equity plan include?

Answer 44

It must state objectives for each year, affirmative action measures, numerical goals, timetables, duration, evaluation procedures, dispute resolution, and responsible personnel for implementation.

Question 45

What is the reporting duty of designated employers under the EEA?

Answer 45

Designated employers must report annually to the Director General on the progress made in implementing the employment equity plan.