Part 3 dealt with identifying discrimination in the workplace. This article, Part 4, deals with two areas of discrimination in particular that employers need to take note of.
The Employment Equity Act (EEA) promotes fair treatment for all workers by removing unfair discrimination. The Department of Labour could fine an employer up to R2.7 million, if found guilty of unfair discrimination.
Unfair discrimination is broad – in Part 2 we described unfair discrimination. However, there are two important areas employers need to specifically watch out for.
Two areas of discrimination employers MUST watch out for to avoid penalties
1. Medical Testing
- Medical testing of an employee can only be done when legislation requires it, or when it is justifiable. For example, medical facts, employment conditions, social policy, fair distribution of employee benefits, inherent requirements of a job.
- HIV testing is not allowed unless it is determined to be justifiable by the Labour Court.
- However, it is allowed if employers are going to help employees with HIV through benefits, policies etc. (Chapter 2, Section 7 of EEA).
2. Psychometric Testing
Psychometric testing and similar assessments are prohibited, unless the test or assessment is:
- Scientifically valid and reliable;
- Can be applied fairly to all employees; and
- Is not biased against any employee or group (Chapter 2, Section 7 of EEA).
Legally, employers may only administer and use medical, psychological and other similar assessments if they are qualified and registered with the appropriate, recognised professional body of South Africa. For example, Health Professionals Council of South Africa, also known as the HPCSA.
Employers must make sure they follow the procedure when conducting the above so they are not accused of unfair discrimination and have to pay hefty penalties to the Department of Labour.
