When All Employees Are Equal, But Some Are More Equal Than Others – Justifiable Discrimination In The Workplace

The primary purpose of the Employment Equity Act, 1998 (Act No. 55 of 1998) (“the (EEA”) is “to achieve equity in the workplace by promoting equal opportunity and fair treatment in employment through the elimination of unfair discrimination”. 

To accomplish this, the EEA sets out certain rules that apply to the treatment of all employees and their conditions of employment in order to achieve maximum equity. The EEA further gives parameters to justify “fair” discrimination in some instances of seeming inequality. 

The situation can arise where there is a difference in the terms and conditions of employment for employees in the same workplace who perform the same or substantially the same work or perform work of equal value. If an employer does this because of any of the grounds listed in section 6(1) of the EEA (including gender, age, disability, religion etc.), it will automatically amount to unfair discrimination. 

However, for a difference in the terms and conditions of employment to be justifiable, it must be due to a reasonable ground in the circumstances and the context of the particular workplace. Such grounds include: 

• an employee’s qualifications; 
• seniority or years of service; 
• the ability or competence of a person; 
• the work performance of the individual; 
• differentiation caused by organisational restructuring; 
• an employee’s position being temporary in nature; 
• a particular person possessing a scarce or rare skill, for which the job market places a remuneration premium; and 
• any other relevant factors that do not lead to direct or indirect unfair discrimination. 

To add to this, section 6(2)(b) states that “It is not unfair discrimination to … exclude or prefer any person on the basis of an inherent requirement of a job”.   

Therefore, it can be seen that because of the position’s inherent requirements or because of such circumstantially valid reasons listed above, an employee’s established rights may not be infringed, and such discrimination or differentiation can be justified. 

However, there are other areas wherein all employees must be treated as equals, despite any other justifiable differentiation. These areas are established workplace procedures, disciplinary enforcement, and opportunities. Besides ensuring fairness, this also establishes certainty and uniformity in the working environment and creates confidence that established standards or norms will apply without favour.