CHAPTER TWO PROHIBITION OF UNFAIR DISCRIMINATION (ss 5-11)

5.   Elimination of unfair discrimination

Every employer must take steps to promote equal opportunity in the workplace by eliminating unfair discrimination in any employment policy or practice.

6.   Prohibition of unfair discrimination

  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, 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, birth or on any other arbitrary ground;

  2. It is not unfair discrimination to --
    1. take affirmative action measures consistent with the purpose of this Act; or
    2. distinguish, exclude or prefer any person on the basis of an inherent requirement of a job.

  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).

  4. A difference in terms and conditions of employment between employees of the same employer performing the same or substantially the same work or work of equal value that is directly or indirectly based on any one or more of the grounds listed in subsection (1), is unfair discrimination.

  5. The Minister, after consultation with the Commission, may prescribe the criteria and prescribe the methodology for assessing work of equal value contemplated in subsection (4).

7.   Medical testing

  1. Medical testing of an employee is prohibited, unless--
    1. legislation permits or requires the testing; or
    2. it is justifiable in the light of medical facts, employment conditions, social policy, the fair distribution of employee benefits or the inherent requirements of a job.

  2. Testing of an employee to determine that employee's HIV status is prohibited unless such testing is determined justifiable by the Labour Court in terms of section 50 (4) of this Act.

8.   Psychometric testing

Psychometric testing and other similar assessments of an employee are prohibited unless the test or assessment being used--
  1. has been scientifically shown to be valid and reliable;
  2. can be applied fairly to employees; and
  3. is not biased against any employee or group.
  4. has been certified by the Health Professions Council of South Africa established by section 2 of the Health Professions Act, 1974 (Act No. 56 of 1974), or any other body which may be authorised by law to certify those tests or assessments.

9.   Applicants

For purposes of sections 6, 7 and 8, "employee"; includes an applicant for employment.

10.   Disputes concerning this Chapter

  1. In this section, the word "dispute" excludes a dispute about an unfair dismissal, which must be referred to the appropriate body for conciliation and arbitration or adjudication in terms of Chapter VIII of the Labour Relations Act.

  2. Any party to a dispute concerning this Chapter may refer the dispute in writing to the CCMA within six months after the act or omission that allegedly constitutes unfair discrimination.

  3. The CCMA may at any time permit a party that shows good cause to refer a dispute after the relevant time limit set out in subsection (2).

  4. The party that refers a dispute must satisfy the CCMA that--
    1. a copy of the referral has been served on every other party to the dispute; and
    2. the referring party has made a reasonable attempt to resolve the dispute.

  5. The CCMA must attempt to resolve the dispute through conciliation.

  6. If the dispute remains unresolved after conciliation--
    1. any party to the dispute may refer it to the Labour Court for adjudication;
      aA.   an employee may refer the dispute to the CCMA for arbitration if-
      1. the employee alleges unfair discrimination on the grounds of sexual harassment; or
      2. in any other case, that employee earns less than the amount stated in the determination made by the Minister in terms of section 6(3) of the Basic Conditions of Employment Act; or;

    2. any party to the dispute may refer it to the CCMA for arbitration if all the parties to the disputeconsent to arbitration of the dispute.

  7. The relevant provisions of Parts C and D of Chapter VII of the Labour Relations Act, with the changes required by context, apply in respect of a dispute in terms of this Chapter.

  8. A person affected by an award made by a commissioner of the CCMA pursuant to a dispute contemplated in subsection (6)(aA) may appeal to the Labour Court against that award within 14 days of the date of the award, but the Labour Court, on good cause shown, may extend the period within which that person may appeal.

11.   Burden of proof

  1. If unfair discrimination is alleged on a ground listed in section 6 (1), the employer against whom the allegation is made must prove, on a balance of probabilities, that such discrimination-
    1. did not take place as alleged; or
    2. is rational and not unfair, or is otherwise justifiable.

  2. If unfair discrimination is alleged on an arbitrary ground, the complainant must prove, on a balance of probabilities, that-
    1. the conduct complained of is not rational;
    2. the conduct complained of amounts to discrimination; and
    3. the discrimination is unfair.