Author Topic: Discrimination and the right to privacy in the recruitment process.  (Read 1049 times)

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Unfair discrimination in the working environment is regulated by the Employment Equity Act (EEA). The EEA places a positive obligation on employers to find and eliminate unfair discrimination in the workplace an in its policies and practices. This process starts at the recruitment process already as the EEA protect job seekers against unfair discrimination and unfair medical and psychometric testing.

Chapter 2 of the Act, dealing with discrimination, applies to all employees, job applicants and employers or prospective employers. A job applicant for the purpose of the EEA is a person who applied for a position with an employer. Unfair discrimination outside the employment relationship should be dealt with in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act, 4 of 2000. A person who submits a CV with a recruitment agency, without applying for a specific position, can therefore not claim to be an applicant for the purpose of the EEA.
The EEA also defines the dispute resolution mechanisms through the CCMA and the Labour Court.

Every person applying the EEA must understand the definition of unfair discrimination to correctly apply the intention of the EEA. The courts will apply an objective test to determine whether an act amounts to unfair discrimination.

The discrimination clause of the EEA, section 6, prohibits unfair discrimination in that:

no person may unfairly discriminate, directly or indirectly against an employee in any employment policy or practice (from recruitment to exit) 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 and birth.

The EEA deals with both concepts of fair and unfair discrimination and it is accepted that not all discrimination is unfair.

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