Johannesburg - Employers should exercise caution when banning candidates from certain racial groups for employment or promotion, law firm Cliffe Dekker Hofmeyr warned on Thursday.
“The facts of each vacancy should be considered in determining whether the conduct of the employer will be fair,” said labour lawyer Johan Botes.
If candidates were excluded, this could amount to unfair discrimination unless the employer could satisfy a court that it had acted fairly and in accordance with its employment equity plan.
Employers who had already reached their employment equity targets, but continued to discriminate against non-designated groups, would have difficulty in relying on the employment equity defence contained in the Employment Equity Act.
“However, an employer that, for instance, incurs huge expense in training candidates for later appointment into categories of employment where there is significant over-representation of white males, may find the court more sympathetic where it excludes white males up-front from participating in the training programme or recruitment,” he said.
Employers should tread carefully when creating absolute barriers for entry for non-designated racial groups, as this could contravene the Employment Equity Act.
The release was issued after retail group Woolworths came under fire for apparent job discrimination against whites.
“Jobs are only designated and preference indicated where there is a need to address representation and ensure the diversity of our teams,” the retailer's chief operating officer Sam Ngumeni said on Wednesday.
“Other than that, all other jobs are open to applicants from all demographic groups.”
The company rejected claims from trade union Solidarity that its recruitment process was racially discriminatory. Ngumeni said all their employment practices were in line with the Employment Equity Act.
Earlier, Solidarity announced a campaign to get Woolworths to retract job advertisements it believed discriminated against whites.
Solidarity deputy general secretary Dirk Hermann said the company failed to retract advertisements for posts for which only black candidates would be considered, despite the union raising concerns about this on Tuesday.
The campaign: “Woolworse: Making a differentiation”, would be driven by social media and include protest messages to Woolworths CEO Ian Moir. - Sapa