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Unfair Discrimination and Recruitment

Updated: May 20, 2019

Unfair discrimination in the workplace relates to an employee being unfairly treated on the grounds of race, gender, religion, marital status, pregnancy, sexual orientation, HIV status, disability, or any other form of discrimination as defined in the Employment Equity (EE) Act.

The EE Act prohibits unfair discrimination against employees and determines that prohibited or arbitrary grounds cannot be taken into account in employment decision-making.

Considering South Africa’s historical and political context, most business owners understand the concept of unfair discrimination as it relates to employees in the workplace, but what many don’t know is that the EE Act includes in its definition of employee an applicant for employment.

It is therefore very important that employers understand their legal obligations, and the rights of potential employees during the recruitment process.

For many years, and in an effort to make the candidate feel relaxed and at ease, I always started off my interviews with informal questions. My typical first question would be something along the lines of: “So Sarah, tell us about yourself”, and then based on the answers I would ask a series of additional personal questions, such as:

  • “Who do you live with?”

  • “You have just got married. Any plans to start a family soon?”

  • “What area do you live in?”

  • “How many animals do you have?”

  • What do you like to do in your spare time?"

Despite me having no ill intentions, these questions had no bearing on the candidate’s ability to perform the job, and merely allowed me to form subjective and possibly prejudiced opinions. This could have easily landed me in hot water had an unsuccessful candidate taken offence and lodged a grievance for an unfair labour practice.

For example, let’s imagine one of the candidates I interviewed, informed me that her and her husband where trying to fall pregnant. When she learned that she was unsuccessful in getting the position, she is convinced that it is due to the fact that she shared her pregnancy plans with me. If she decides to take me to CCMA for unfair labour practice, I could potentially have to disprove that there was unfair discrimination, by providing objective and valid reasons why another candidate was selected over her.

These days, I am much more prepared when entering an interview. I use the job description and compose a list of questions relating to role specific criteria, behaviours and competencies. I am amazed at how much objective information I can gain from a structured, yet relaxed interview. Typical questions I ask would include:

  • “How does your present position, or past work experience, link up with the position you are applying for now?”

  • “What do you enjoy about this industry?”

  • “Give me an example of when your work was criticized.”

  • “How do you measure your own performance?”

  • “What kind of pressures have you encountered at work?”

  • “What can you bring to our business?”

  • “Do you prefer to work alone, or in a group?”

Lastly, when I encounter two very strong candidates and am battling to make a decision, I will often ask them to demonstrate their competency at a follow-up meeting, by way of conducting a competency test. Dependent on the role, this could be a presentation, an Excel or PowerPoint test, a design challenge test etc., dependent on the

In conclusion, the golden rule when conducting interviews is to ensure that all interview questions are non-discriminatory and are related to the job requirements. If the answer holds no relevancy to the job seeker’s ability to perform the job, then don’t ask it. Finally, all candidates should be asked the same questions, after-all the basis for a good interview is fairness.

Written by Co-Pilot Director and HR Specialist, Lindy-Leigh Swales

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