How Differentiation Overcomes Discrimination

Differentiation entails the action or process of distinguishing or differentiating between two or more thing and people, with regard to employment this is when an employer treat employees differently or uses policies which will exclude a certain group of employees .for example in the case of Solidarity obo Bernard , a deserving white police woman was denied promotion because her promotion would not address representivity.

2. When does differentiation becomes discrimination?

Differentiation only becomes discrimination when the differentiation is made for unacceptable reasons , these unacceptable reasons are first all grounds of discrimination in S6[1] of EEA such as race, gender, disability, age, HIV status , etc.

3. What is the different

However employers are not given complete carte blanche in this regard , the provision set certain limits. To escape being branded unfair an affirmative action appointed must be consistent with the purpose of Employment Equity Act 55 of 1998 .

In the case of Solidarity obo Barnard v South African Police Services concerned a decision by National Commissioner not to appoint a deserving white female police captain to a vacant post solely because her promotion would no “address representivity”. By this the SAPS meant that the to promote a white officer would not take the number of black in the unit in which she worked, and at the rank concerned, any nearer to racial target laid down in the SAPS equity plan.

The court held that provision of the Employment Equity Act 55 of 1998 and of the SAPS must be applied fairly and with due regard to effected employees constitutional rights to equality and dignity . The extent to which equity plan may discriminate against employees is limited by law . The Employment Equity Act requires employers to apply it provision rationally and fairly, and to recognise the rights of affected employees

The purpose of s6(2)(b) is clear, it recognises that notwithstanding the need to eradicate discrimination from the workplace, there may nevertheless be situation in which possession of one of the characteristics listed in s6(1), or lack thereof, may be relevant to certain post or work . The characteristics must be linked to an inherent requirement of work. The word “inherent” suggest that possession of a particular personal characteristic must be necessary to effectively perform the duties attached to a particular position .

In the case of Hoffman v SAA the high court accepted that the commercial operation of SAA and therefore perception about it would be undermined if the employment practice of SAA did not promote the health and safety of the crew and passengers by ensuring that their cabin attendants on international flights were HIV free. The court also accepted the national carrier’s ability to compete with other airlines might adversely be