Chapter II

CHAPTER II
PROHIBITION OF UNFAIR DISCRIMINATION

5.   Elimination of unfair discrimination.--Every employer must take steps to promote equal opportunity in the workplace by eliminating unfair discrimination in any employment policy or practice.

6.   Prohibition of unfair discrimination.--(1)  No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on 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.

(2)  It is not unfair discrimination to--

1. take affirmative action measures consistent with the purpose of this Act; or
2. distinguish, exclude or prefer any person on the basis of an inherent requirement of a job.

(3)  Harassment of an employee is a form of unfair discrimination and is prohibited on any one, or a combination of grounds of unfair discrimination listed in subsection (1).

7.   Medical testing.--(1)  Medical testing of an employee is prohibited, unless--

1. legislation permits or requires the testing; or
2. it is justifiable in the light of medical facts, employment conditions, social policy, the fair distribution of employee benefits or the inherent requirements of a job.

(2)  Testing of an employee to determine that employee's HIV status is prohibited unless such testing is determined justifiable by the Labour Court in terms of section 50 (4) of this Act.

8.   Psychometric testing.--Psychometric testing and other similar assessments of an employee are prohibited unless the test or assessment being used--

1. has been scientifically shown to be valid and reliable;
2. can be applied fairly to employees; and
3. is not biased against any employee or group.

9.   Applicants.--For purposes of sections 6, 7 and 8, "employee" includes an applicant for employment.

10.   Disputes concerning this Chapter.--(1)  In this section, the word "dispute" excludes a dispute about an unfair dismissal, which must be referred to the appropriate body for conciliation and arbitration or adjudication in terms of Chapter VIII of the Labour Relations Act.

(2)  Any party to a dispute concerning this Chapter may refer the dispute in writing to the CCMA within six months after the act or omission that allegedly constitutes unfair discrimination.

(3)  The CCMA may at any time permit a party that shows good cause to refer a dispute after the relevant time limit set out in subsection (2).

(4)  The party that refers a dispute must satisfy the CCMA that--

1. a copy of the referral has been served on every other party to the dispute; and
2. the referring party has made a reasonable attempt to resolve the dispute.

(5)  The CCMA must attempt to resolve the dispute through conciliation.

(6)  If the dispute remains unresolved after conciliation--

1. any party to the dispute may refer it to the Labour Court for adjudication; or
2. all the parties to the dispute may consent to arbitration of the dispute.

(7)  The relevant provisions of Parts C and D of Chapter VII of the Labour Relations Act, with the changes required by context, apply in respect of a dispute in terms of this Chapter.

11.   Burden of proof.--Whenever unfair discrimination2 is alleged in terms of this Act, the employer against whom the allegation is made must establish that it is fair.