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A B C D E F G H I J K L M N O P Q R S T U V W X Y Z

Form G - Recruitment, Selection and Appointment

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    THE 1995 LABOUR RELATIONS ACT

  1. The employment Equity act, 55 of 1998 ("the EEA") provides in terms of section 6 that:
    1. no person may unfairly discriminate,
    2. directly or indirectly
    3. against an employee,
    4. in any employment policy or practice,
    5. 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 consequently goes far further than the ILO Convention 111 of 1958, which recognises only 7 grounds. The EEA recognises 16 grounds as well as the concept of indirect vs direct discrimination.

    DISPUTE RESOLUTION

  2. Where an act of discrimination is alleged, a complainant may approach the CCMA for conciliation.


  3. Should it not be able to resolve the dispute, either party may proceed to the Labour Court for adjudication (see section 10).


  4. Where the dispute is referred to the Labour Court for adjudication, the court may:
    1. award compensation, or
    2. may determine the dispute on terms it deems reasonable

    DEFENCES

  5. The EEA recognises 2 defences:
    1. Affirmative action
    2. Inherent requirements of a particular job (the latter deriving from ILO Convention 111 of 1958).

  6. Hence, where for example Anglican religion is essential to a priest working in an Anglican church, religion would be accepted as an inherent requirement of a particular job. Whenever unfair discrimination is alleged in terms of this EEA, the employer against whom the allegation is made must establish that it is fair.

    7. DIRECT VS INDIRECT DISCRIMINATION

  7. Indirect discrimination occurs where a condition is attached to a job which is not essential to the occupation and which appears prima facie neutral, but which when applied has a discriminatory effect, e.g. unnecessary language standards or unnecessary educational standards.


  8. Other examples are where an employer recruits from an agency which only deals with certain types of people, places adverts in a newspaper which circulates only amongst a certain racial or language group, or recruits only from educational institutions which produces graduates primarily of one racial group.

    9. DISCRIMINATION IN RECRUITMENT AND SELECTION

  9. For purposes of sections 6, 7 and 8of the EEA, 'employee' includes an applicant for employment.


  10. When a person becomes an applicant has not yet been decided and could extend to where an employee:
    1. responds to an advertisement, or
    2. submits a formal application for employment, or
    3. sends in an unsolicited application.

    DEFINING COMPETENCIES

  11. The recruiter must first analyse the job's essential competencies, and decide whether any of the following are essential:
    • 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 recruiter must ensure that there are no arbitrary requirements either, e.g. area of residence, height, weight, looks, unnecessary educational standards. If any of the above are absolutely essential, only then may they be included in the job advertisement and interview stages.

    ADVERTISING

  12. As there are no guidelines, it is possible that the South African courts will draw on UK, USA and other international precedents to guide them in these areas. The following guidelines can be derived from practices elsewhere:
    1. Advertisements may not indicate an intention to discriminate against members of a particular group.
    2. Advertisements should not be unjustifiably confined to areas or publications which exclude, or disproportionately reduce the numbers of applicants from any particular racial group.
    3. Employees should not prescribe requirements which are superfluous to the job and would have the effect of unjustifiably excluding members of particular groups.
    4. Gender neutral language must be used. Terms like saleslady, waiter or postman can be deemed to be an indication of an intention to discriminate, and must be avoided.
    5. The employer should advertise in media directed at a broad range of groups.
    6. The employer should include the phrase "equal opportunity employer" in advertisements.
    7. Advertisements should make it clear that the post to be filled is open equally to members of all groups who have the required qualifications.
    8. The wording or graphics in advertisements should not present stereotypes or roles.
    9. Classified advertisements should have neutral headings, i.e. employers should avoid e.g. "Employment - male" columns, unless being male is an inherent requirements for the job.
    10. The content of the advertisement should not give preference to a particular sex or group.
    11. Employers should not unjustifiably confine recruitment to agencies, job centres, careers offices and schools which provide only or mainly applicants of a particular group.
    12. Head hunting may be indirectly discriminatory and difficult to justify objectively, unless the vacancy has been openly advertise.
    13. Employers should avoid recruitment practices which rely on word of mouth, particularly where the existing workforce is heterogeneous and likely to perpetuate the existing profile of the workforce.
    14. Employers should avoid categorising jobs a man's work/woman's work.

    The questionnaire/application form

  13. Recruitment questionnaires should not ask questions relating to any of the items mentioned in the EEA (see DEFINING COMPETENCIES above), unless they are essential to an inherent requirement of the job.


  14. Consequently employment application forms should avoid soliciting information on the following typical items:
    • Title - Mr, Mrs, Ms (indicates gender)
    • Maiden name (indicates gender)
    • Age
    • Date of birth (indicates age)
    • Place of birth (indicates ethnic or social origin, or social class and is not relevant)
    • Religion
    • Home language
    • Identity number (indicates age)
    • Next of kin (arbitrary and irrelevant)
    • Marital status
    • Children
    • Dependants
    • Health
    • Disabilities
    • Criminal records (unless the job relates to an activity where the absence of a criminal record is essential)
    • Languages
    • Housing (irrelevant)
    • Leisure activies (arbitrary/irrelevant)
    • Military record (irrelevant)
    • Whether the applicant is related to or known by an existing employee (may lead to an inference of nepotism)
    • All/any other irrelevant issues

  15. Certain essential information may be solicited to record purposes once an offer of employment has been accepted, and questions relating to any of the above may be asked only if they relate to an essential requirement of a particular job.


  16. Consequently the application form under Form 2b may need to change for each job applicant to ensure that it only solicits information that relates directly to the competencies required to perform a particular job.

    17. PRE-EMPLOYMENT TESTING

  17. Where an employee is tested on tasks that are not relevant to the individual applicant's ability to the job or to the effective performance of the job, it is likely that indirect discrimination is present.


  18. Questions should not test candidates who are members of one group more rigorously than others, and should endeavour to be culturally neutral.


  19. Tests on irrelevant material should be avoided, as should tests which are likely to have the effect of prejudicing a particular group, e.g. having general knowledge tests which ask information which is more likely to be known by members of a particular group.

    20. INTERVIEWS

  20. The questions directed at prospective employees are critical and they should be phrased in such a way as not to convey attitudes, assumptions or prejudices.


  21. E.g. in one UK case an Irish applicant was asked whether he had a problem with the drink served in England. The applicant took this as conveying a stereotype of the Irish as prone to alcohol abuse and was awarded $600.


  22. Women/Men should not be questioned about their intention to marry/become engaged, but can be asked how long they intend to remain with the company.


  23. Women/Men should not be questioned about their intention to start a family as this can create an impression of intention to discriminate.


  24. Questions about age of children, number of children and family responsibilities are also problematic.


  25. Questions as to suitability to perform the duties of the job are relevant, rather than those which relate to parental obligations.


  26. E.g. we need someone who is able to be constantly in attendance and who does not take off work frequently. Are you able to do so?


  27. Questions relating to sexual orientation are not permitted.


  28. Age is also not relevant. What is relevant is ability to do a job, and age should not be asked.

    29. MEDICAL ISSUES

  29. Different international jurisdictions have different approaches:


  30. In German Law questions regarding medical history, past illness and present illness can be asked where the employer can demonstrate a sufficient interest, i.e. the questions must be relevant to the job, the company or its employees.


  31. Questions which relate to any contagious disease which may endanger prospective colleagues and customers would be relevant and therefore admissible.


  32. Furthermore, in Germany severely disabled applicants can be required to provide information concerning the disability, if asked.


  33. American Law prohibits any questions on medical condition or history in the interview phase. Employers may also not request employees to undergo a medical examination.


  34. Once a conditional offer of employment has been made, questions may be asked and an examination required, but the offer may only be withdrawn for job related reasons consistent with business necessity, or where the person on account of disability poses a direct threat to the health and safety of him/herself or others.


  35. Post offer medical information is protected by considerations relating to privacy. Furthermore, in Germany severely disabled applicants can be required to provide information concerning the disability, if asked.


  36. American Law prohibits any questions on medical condition or history in the interview phase. Employers may also not request employees to undergo a medical examination.


  37. Once a conditional offer of employment has been made, questions may be asked and an examination required, but the offer may only be withdrawn for job related reasons consistent with business necessity, or where the person on account of disability poses a direct thereat to the health and safety of him/herself or others.


  38. Post offer medical information is protected by considerations relating to privacy.

    39. RELIGIOUS AFFILIATION

  39. Questions on religious affiliation are not allowed except in the case of enterprises such as church institutions, or where religion is directly relevant.

    40. REFERENCE CHECKING

  40. Prohibited and arbitrary questions as outlined above should not be asked, and the questions should relate only to:
    • the required competencies
    • verification of information supplied by the applicant
    • reason for leaving
    • ability to get on with colleagues
    • period of service
    • disciplinary record
    • absenteeism
    • honesty
    • timekeeping
    • attitude to work

  41. Questions on prohibited topics (as outlined in the preceding paragraphs) may only be asked where they are essential to an inherent requirement of a particular job.


  42. Referees will invariably be known to the applicant, and could quite easily inform them if prohibited questions have been asked.

    43. PRACTICAL GUIDELINES

  43. To avoid allegations of discrimination, the following guidelines are being followed by a major corporation's recruitment personnel:


  44. An analysis of the inherent requirements and competencies of a job is undertaken, prior to the advertising of the vacancy. Form the in-dept analysis, competency models are derived.


  45. Culturally neutral instruments are developed to measure the competencies required for the position. The instruments will distinguish what is critical, what is important and what is relevant. All irrelevant an non-competency based information is ignored.


  46. The position is advertised according to certain guidelines which ensure that potentially discriminatory inferences are avoided. This is done by ensuring that the advert focuses on competencies and excludes reference to irrelevant information.


  47. There will be pre-screening according to defined criteria, where appropriate candidates will be rated on a matrix which reflects only competencies and excludes ancillary/irrelevant information.


  48. Interview guidelines are developed which prohibit the asking of questions on non-competency bases issues, and which question the candidates solely on the competencies required for the particular position.


  49. Reference checking is carried out according to guidelines, which again stress the competencies required for a particular job and which avoid prohibited questions

Compiled by M. Scheepers

This manual is copyright under the Berne Convention. In terms of the Copyright Act, No. 98 of 1978, no part of this manual may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording or by any information storage and retrieval system, without permission in writing from the author.

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