LLexiSA

Employment Equity

Preventing Unfair Discrimination in the Workplace

Section 6 of the Employment Equity Act 55 of 1998 (EEA) prohibits unfair discrimination — direct or indirect — against employees or job applicants on listed grounds (race, gender, disability, religion, and others) or any other arbitrary ground. This applies across the whole employment relationship: advertising a vacancy, shortlisting, interviewing, setting pay, promoting, and disciplining.

Key facts

  • EEA s 6 lists specific prohibited grounds (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) plus a catch-all for any other arbitrary ground.
  • 'Equal pay for work of equal value' (EEA s 6(4)) means a pay difference between employees doing the same or substantially similar work needs a justifiable, non-discriminatory reason (e.g. seniority, qualifications, performance) — not just 'that's what we've always paid'.
  • Fair discrimination exists — e.g. affirmative action measures consistent with the EEA's purpose, or inherent job requirements — but the burden is on the employer to justify it once discrimination is shown (EEA s 11).
  • A discrimination dispute can be referred to the CCMA and, if unresolved, to the Labour Court or (for cases the parties consent to) arbitration — there is no compensation cap for unfair discrimination claims, unlike ordinary unfair dismissal.
  • Designated employers (50+ employees, or below the sectoral threshold) have additional EEA reporting and affirmative-action-planning duties — smaller employers are still bound by the anti-discrimination provisions even without those reporting duties.

The law that applies

  • Employment Equity Act 55 of 1998 — ss 6, 11, 60
  • Constitution of the Republic of South Africa, 1996 — s 9 (equality)

Practical steps

  1. Keep recruitment criteria and interview questions strictly job-related.
  2. Review pay structures periodically for unexplained gaps between employees doing similar work.
  3. Adopt a written anti-discrimination policy and make sure managers know it.
  4. Investigate any discrimination complaint promptly — s 60 liability turns on how you respond, not just whether the incident happened.
  5. If you employ 50+ people, confirm your EEA reporting obligations with the Department of Employment and Labour.

Frequently asked questions

Is it discrimination to ask about a candidate's age or health during recruitment?

Questions unrelated to an inherent job requirement can support an inference of discrimination if the candidate isn't hired — keep recruitment criteria job-related and be able to justify why any personal information asked for was necessary.

What is s 60 liability — am I responsible for what my employees say to each other?

Yes, potentially. EEA s 60 makes the employer liable for discriminatory conduct by employees (e.g. harassment, discriminatory remarks) unless the employer can show it took all reasonable steps to prevent it and addressed it once it knew.

Have a specific employee situation?

Ask Chat to Lex. It will take your specific facts and give you a cited assessment — not just the general position above — free.

Ask about preventing unfair discrimination in the workplace

This guide is legal information, not legal advice, and may not reflect amendments after its last review. For advice on your specific circumstances, consult a practising attorney or labour law specialist.