Legal Considerations in Selection for South Africa

Transcription

1 Legal Considerations in Selection for South Africa 1. Introduction Under the common law and the old Labour Relations Act of 1956 (now repealed), employers were generally unrestrained when appointing employees. It was possible to exclude applicants on any ground, even if the ground was directly or indirectly discriminatory. The individual freedoms and rights of the employee did not enjoy adequate protection and the employment culture in general was not founded sufficiently on non-discriminatory labour practices. However, far-reaching changes to our labour and equality laws were brought about with the introduction of new laws, pioneered by the Constitution of the Republic of South Africa, The most important legislation in so far as recruitment and selection are concerned are the Labour Relations Act, 1995 (LRA), the Employment Equity Act, 1998 (EEA) and the Promotion of Equality and Prevention of Unfair Discrimination Act, 4 of Development Dimensions International, Inc., Revised Pittsburgh, Pennsylvania. All rights reserved under U.S., International, and Universal Copyright Conventions. Published in the United States of America, the United Kingdom, Canada, and other countries. Development Dimensions International prohibits the reproduction of any portion of these printed materials in any medium without prior written agreement. These materials may be used only with related printed and video materials. Furthermore, clients are required to provide each viewer of the videos with a complete set of related printed materials for that person s use during and after the training. Such materials are not intended for or authorized for use by others. DDI and Targeted Selection are marks of Development Dimensions International.

2 2. The Law We set out below some of the relevant provisions in our law impacting on recruitment and selection: 2.1 Constitution of the Republic of South Africa, 1996 Equality (Section 9) Everyone is equal before the law and has the right to equal protection and benefit of the law. Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons or categories of persons disadvantaged by unfair discrimination, may be taken. The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination. Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair. Labour Relations (Section 23) Everyone has the right to fair labour practices. Access to Information (Section 32) Everyone has the right of access to: Any information held by the state; and Any information that is held by another person and that is required for the exercise or protection of any rights. 2.2 The Employment Equity Act, 1998 For purposes of this Act, a person may be suitably qualified for a job as a result of any one of, or any combination of that person s: Formal qualifications. Prior learning. Development Dimensions International, Inc., Revised

3 Relevant experience. Capacity to acquire within a reasonable time the ability to do the job. When determining whether a person is suitably qualified for a job, an employer must: Review all the factors listed above. Determine whether that person has the ability to do the job in terms of any one of, or any combination of the factors. In determining whether a person is suitably qualified for a job an employer may not unfairly discriminate against a person solely on the grounds of that person s lack of relevant experience. 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. Employment policy or practice includes, but is not limited to: Recruitment procedures, advertising and selection criteria. Appointments and the appointment process. Job classification and grading. Remuneration, employment benefits and terms and conditions of employment. Job assignments. The working environment and facilities. Training and development. Performance evaluation systems. Promotion. Transfer. Demotion. Disciplinary measures short of dismissal. Dismissal. Development Dimensions International, Inc., Revised

4 Prohibition of Unfair Discrimination 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. It is not unfair discrimination to: Take affirmative action measures consistent with the purpose of this Act. Distinguish, exclude or prefer any person on the basis of the inherent requirements of a job. 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). Medical Testing Medical testing of an employee is prohibited, unless: Legislation permits or requires the testing. 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. Medical testing includes any test, question, inquiry or other means designed to ascertain, or which has the effect of enabling the employer to ascertain, whether an employee has any medical condition. Testing of an employee to determine that employee s HIV status is prohibited unless such testing is determined to be justifiable by the Labour Court (Section 7.2). [The question has arisen as to whether all HIV testing, including voluntary testing, requires the prior approval of the Labour Court. This question was however clarified by the Labour Court in an early 2003 ruling which found that anonymous and voluntary HIV testing did not fall under this section, and was therefore not prohibited. The court held that the section prohibited only HIV testing that was compulsory and intended to discriminate against employees. See also: Code of Good Practice on Key Aspects of HIV/AIDS and Employment]. Development Dimensions International, Inc., Revised

5 Psychological Testing and Other Similar Assessments Psychometric testing and other similar assessments of an employee are prohibited unless the test or assessment that is used: Has been scientifically shown to be valid and reliable. Can be applied fairly to all employees. Is not biased against any employee or group. For the purposes of the above provisions employee includes an applicant for employment. Whenever unfair discrimination is alleged in terms of this Act, the employer against whom the allegation is made must establish that it is fair. 2.3 The Promotion of Equality and Prevention of Unfair Discrimination Act, 4 of 2000 The object of the Equity Act is inter alia: To provide for measures to facilitate the eradication of unfair discrimination, hate, speech and harassment, particularly on the grounds of race, gender, and disability. To provide for procedures for the determination of circumstances under which discrimination is unfair. To provide for measures to educate the public and raise public awareness on the importance of promoting equality and overcoming unfair discrimination, hate, speech and harassment. To provide remedies for victims of unfair discrimination, hate, speech and harassment and persons whose right to equality has been infringed. To set out measures to advance persons disadvantaged by unfair discrimination. The Act further provides an illustrative list of unfair practices in certain sectors. Section 29 specifically deals with such illustrations in respect of labour and employment. The following has been listed as illustrative of unfair practices: Creating artificial barriers to equal access to employment opportunities by using certain recruitment and selection procedures. Applying human resource utilization, development, promotion and retention practices which unfairly discriminate against persons from groups identified by the prohibited grounds. Failing to respect the principle of equal pay for equal work. Development Dimensions International, Inc., Revised

6 The remedies available to an employee or applicant for employment or any breaches related to rights protected in terms of the Equity Act can be any of: An interim order. A declaratory order. An order making a settlement between the parties. An order for payment of damages in respect of proven financial loss, or in respect of impairment of dignity, pain and suffering or emotional and psychological suffering as a result of the unfair discrimination, hate, speech or harassment in question. 2.4 Promotion of Access to Information Act, 2000 The Promotion of Access to Information Act was introduced in February 2000 to give effect to the provisions of Section 32 of the Constitution which provides for the right of access to any information held by the State and to any information that is held by another person and that is required for the exercise and/or protection of any right. Any person who states that he/she requires access to records of a private body in order to enforce any right must be provided with access to the records concerned, after complying with a prescribed administrative procedure. Although the requester must explain on what basis he/she requires the information and what right he/she is seeking to enforce, this provision is so broadly drafted that this will usually be fairly easy to do. Certain information, such as trade secrets of the private body, confidential information of third parties or information that is legally privileged, is protected. In the context of recruitment, an unsuccessful applicant may request access, in accordance with this Act, to the records and documentation pertaining to the selection process in order to ascertain whether the process was fair and unbiased. 3. Discrimination 3.1 Direct Unfair Discrimination Direct unfair discrimination may be interpreted as when an employee is treated less favourably on some irrelevant ground. Unless the employer can substantiate that certain requirements are based on the inherent requirements of the job, or is affirmative action based, excluding an applicant on the following grounds could constitute direct unfair discrimination: Family responsibility (mother of small children who may interfere with job responsibilities). Marital status (must or must not be married, single, divorced). Development Dimensions International, Inc., Revised

7 Age (must be younger than 25). Multilingualism (must be fluent in more than one language). Sex (must be male or female). Race (must be white). Disability (diabetes, HIV positive, dyslexia, handicapped). Religion (must be Christian). In direct unfair discrimination, the focus is on the act or omission of the employer and the subsequent effect on the individual. Direct unfair discrimination is often intentional, though it is the consequences of the act or omission which are at issue and not the intention of the act itself. In Swart v Mr. Video (1998) 19 ILJ 1315 (CCMA) the employer, seeking to staff a newly opened store, placed an advertisement for a shop assistant under 25 years of age. Ms Swart, who was 28 at the time, was interviewed, but was rejected because of her age. The CCMA found that discrimination could be justified only if based on the inherent requirements of the job. If an applicant was prepared to work and was not averse to accepting instructions from younger people, there was no reason why he or she should not be able to perform the work. 3.2 Indirect Unfair Discrimination Indirect unfair discrimination is where apparently neutral criteria are applied that are not sufficiently relevant to workplace needs to justify their inclusion. The following are some examples of indirect discrimination: The requirement uninterrupted job continuity for a period of 1 year, may discriminated against pregnant women who will be going on maternity leave, unless it can be shown that continuity of employment is critical in the circumstances. Setting unrealistic selection criteria. Inconsistency in questions asked during the interview. Restricted media selection in advertising for applicants. Not considering or inviting internal applications. In instances of indirect unfair discrimination the employer will be required to prove that it did not even unintentionally discriminate. Development Dimensions International, Inc., Revised

8 3.3 Discrimination on the Basis of Age The matter of Hospersa v SA Nursing Council (2006) 6 BLR 558 (LC) provides a good example of discrimination on the basis of age as a result of provisions regulating retirement. In this matter the employee was contracted to retire at the age of 70 but had an option to take earlier retirement at the age of 65. At some point, the retirement age was unilaterally lowered to 60, to be extended to 65 at the employer s election. The applicant sought permission when she turned 60, to continue work until the age of 65. Her request was refused. The applicant referred a claim in terms of section 6(1) of the Employment Equity Act to the Labour Court on the basis of unfair discrimination related to age. In the present case, the court found that no agreement was concluded for the employee to retire at the age of 60 nor had this become a norm in the workplace. The sole reason for treating the applicant differently was accordingly her age and the Labour Court awarded the applicant the equivalent of 2 years remuneration for unfair discrimination. In the matter of Botha v du Toit, Vrey and Partners CC (2006) 1 BLLR 1 (LC) the Labour Court had to determine a similar claim in respect of unfair discrimination on the basis of age. In this matter the applicant s employment terminated when he turned 66. The reason given to the applicant was that he had already reached the retirement age of 65. The applicant argued that he was entitled to remain employed until he decided to retire, or was unable to work. The Labour Court had to decide whether there was a tacit agreement between the applicant and his employer to retire at the age of 65, alternatively, whether this was the normal retirement age. On the evidence, the applicant had never been told that he was to retire at 65. There was further no agreed retirement age but on the facts, the normal retirement age in the industry was 65. The court did not regard the dismissal of the applicant as unfair discrimination but because the dismissal was procedurally unfair and no consultation had taken place, it awarded the applicant 3 months remuneration for procedural unfairness. 3.4 Discrimination on the Basis of Race Apart from a few cases, disappointed applicants have generally been unsuccessful in sustaining claims that they have been discriminated against on the basis of race simply because they were more experienced or better qualified than the person who was appointed or because they were previously disadvantaged. Development Dimensions International, Inc., Revised

9 It is not unfair to discriminate in terms of recruitment and selection practices where the differential treatment can be justified on the basis of an affirmative action policy or the existence of a plan to address past inequalities. Affirmative action policies provide a legitimate defence to a discrimination claim. However, the South African courts have indicated that arbitrary appointments on the basis of race will constitute unfair discrimination. There must be a policy or a programme through which affirmative action is to be effected and the policy or programme must be designed to achieve the adequate advancement or protection of certain categories of persons or groups disadvantaged by unfair discrimination. A case, heard before the Labour Court in November 2002, was brought by white inspectors in the Police Bomb Disposal Squad who argued that their exclusion from being considered for promotion into posts designated for affirmative action appointees unfairly discriminated against them on the grounds of their race. The SAPS argued that the discrimination was not unfair because it was in accordance with affirmative action measures consistent with the purposes of the Employment Equity Act. The Labour Court ruled against the SAPS defence of the application of an affirmative action measure. He held that the SAPS had failed to produce a specific affirmative action plan for the unit and the court ordered the SAPS to promote the employees. Also, in Abbott v Bargaining Council for the Motor Industry (Western Cape) (1999) 20 ILJ 330 (LC), the Labour Court held that, in the absence of an affirmative action policy, black employees had no right to claim preferential treatment. In a more recent case of the SA Transport & Allied Workers Union v Old Mutual Life Assurance (2006) 8 BLLR 737 (LC), the Labour Court had to determine whether the conduct on behalf of Old Mutual with regards to a disciplinary matter constituted unfair discrimination on the grounds of race. The employer failed to take proper steps to prevent racism being perpetrated at the workplace which had resulted in a claim by the Union for discrimination on the basis of race. The court found that the employer did indeed fail to take proper steps in preventing racism being perpetrated at the workplace and that such a failure did indeed constitute direct and unfair discrimination against the employees affected by the conduct in question. The employees who lodged the claim were entitled to be compensated. In an arbitration between Solidarity v Eskom Holdings Ltd (2006) 27 ILLJ 1291 (ARB) the CCMA had to consider whether Eskom acted discriminatory when hiring an African male in preference to a Coloured male in circumstances where the appointment was made to advance employment equity. At issue was whether Eskom was entitled to adopt this measure, in view of the fact that the applicant was a member of a designated group. The arbitration concluded that section 42 of the Employment Equity Act required the extent to which suitably qualified people from and amongst the different designated Development Dimensions International, Inc., Revised

10 groups are equally represented to be taken into account in the context of assessment of compliance. Due to the undue representation of Africans being markedly higher than that of Coloureds, the appointment of the African male was regarded as nondiscriminatory. 3.5 Discrimination on the Basis of Disability Disability needs to be addressed in the following ways: During recruitment care needs to be taken to avoid discrimination. The interview should be structured in a way that only the required information is obtained regarding the position and the prospect incumbent s ability to perform in terms of the inherent requirements of the position. Sick leave should be managed to reduce downtime, but also to identify areas where the incumbent could be accommodated reasonably or where long term disability could be avoided. Creating career advancement opportunities for people with disabilities. Ultimately the aim is to create equal and free advancement opportunities for people with disabilities within a company. At face value the impact of the legislation seems costly but disability management could limit the additional costs for the company in terms of reducing the impact on employee benefits and replacement costs. Legislation in the disability arena has changed dramatically and new sources have been developed to standardize disability intervention and also to create guidelines for the management of incapacity. (See: Code of Good Practice on the Employment of People with Disabilities.) 3.6 Discrimination on the Basis of Pregnancy In Whitehead vs. Woolworths (Pty) Limited (1999) 8 BLLR 862 (LC), the Labour Court sent a message to employers that failing to employ an expectant mother could lead to an unfair labour practice dispute. In a more recent case of Wallace v Du Toit (2006) 8 BLLR 757 (LC), the applicant was dismissed from her position as an au pair on account of her pregnancy. The employer s defence was that the employee was no longer able to meet the specific requirements of the au pair position as a result of her pregnancy. The defence was rejected by the Labour Court and resulted in the employer having to pay the applicant compensation of R for unfair discrimination on the basis of pregnancy. Development Dimensions International, Inc., Revised

11 3.7 Implications for Employers If an employer s hiring practices are not based strictly on job-related criteria, the organization may be left vulnerable in respect of unfair labour practice claims. The following examples illustrate this point: An employer could be guilty of sex discrimination if it denies a woman employment because her spouse was likely to be relocated, or if it refused to hire a woman for a job in which she would be required to travel with men. An employer cannot refuse to hire or promote a qualified person because of his or her religious affiliation. Trying to protect females by requiring them to take an early leave of absence because of pregnancy, or by refusing to hire them for night shift and strenuous jobs, could be discriminatory. In other words, the intent or reason for discriminating, no matter how pure, is not relevant. It is therefore necessary that selection systems are consistent, equitable and fair. This means that the recruitment and selection process must be applied equally to all applicants. For example, if an employer requires applicants to undergo certain preemployment testing (e.g., psychometric testing), such testing must be required of all and not just some applicants. However, a consistent system does not necessarily imply that every applicant must go through all parts of the system. It does however mean that every person reaching a particular stage in the system be treated equally. Structuring system components in such a way that they are always administered in the same order, with the same specific decision points, establishes credible consistency. Without a defined structure, it s almost impossible to prove that all applicants were treated similarly at each stage of the selection process. 3.8 Duties of Designated Employers Duties of employers under the Employment Equity Act: Affirmative Action measures. These measures are to identify and eliminate employment barriers, including unfair discrimination, adversely affecting designated groups. Development Dimensions International, Inc., Revised

12 Measures to further diversify the workplace. Measures that make reasonable accommodation for designated groups to ensure equal opportunities and representation. The Employment Equity Act 1998 provides that reasonable accommodation means any modification or adjustment to a job or to the working environment that will enable a person from a designated group to have access to or to participate or advance in employment. 4. Characteristics of a Compliant Selection Process 4.1 Inherent Requirements of the Job When employers recruit they should: Identify the inherent requirements of the vacant position. The inherent requirements of the job are those requirements the employer stipulates as necessary for a person to be appointed to the job, and are necessary in order to enable an employee to perform the essential functions of the job. Describe clearly the necessary skills and capabilities required for the job. Set reasonable criteria for selection, preferably in writing. 4.2 Advertisements It may be discriminatory to post advertisements, without justification, in those areas or media which would exclude, or which would reduce the numbers of applicants of a particular group of people. For example, it may amount to discrimination if the employer advertises a vacant post in a publication that is largely aimed at and read by a male readership. An employer should take considerable care in ensuring that the advertisement is worded in such a way that does not directly or indirectly discriminate against any group of people. 4.3 Screening CVs In screening CVs for suitability, the primary concern is whether the applicant has the necessary and minimum skill, experience and qualifications required for the position. Excluding CVs on the basis of some arbitrary ground, not related to the inherent requirements of the job, may lay a company open to possible claims of discrimination. Development Dimensions International, Inc., Revised

13 The Interview The interview is an important aspect of the selection process but is also fraught with legal risks. The following are guidelines for conducting interviews that are both compliant and effective: Be knowledgeable about employment legislation. The interviewer must ensure that he/she is acquainted with the legislation impacting recruitment (See section 2) and is constantly updated on amendments and developments in the law. Avoid potentially risky interview questions. All questions asked as part of the selection process must relate directly to the position applied for. Interviewers must not ask or request information about issues that are not relevant to the position or that may be potentially discriminatory. Currently, areas of potential risk during interviews include asking questions about the following: Age. Race. Gender. National origin. Religion. Marital status. Sexual preference. Number of dependents. Child care. Housing. Arrest record. Health or disability status. Willingness to work weekends (unless this is an essential requirement of the position). Any information from female applicants which is not routinely requested of male applicants. Development Dimensions International, Inc., Revised

14 Questions that might imply discriminatory bias should also be avoided. For example, Is St. Johns a church school? is a prohibited question. Phrase questions clearly. Discrimination problems usually don t arise from the intent of a question, but from how it is asked. It is acceptable to directly seek information regarding possible problems arising from job-related requirements, such as travel, long hours, or the need for specialized education. Interviewers attempts to uncover these areas through inappropriate questions, however, can lead to discrimination claims. For example, an interviewer might assume that a female applicant for a sales position might have more difficulty meeting the requirement for frequent overnight travel than a male applicant. This assumption might lead the interviewer to inquire about the woman s children and arrangements for their care or about her spouse s attitude toward her travelling with male colleagues. These questions are inappropriate. Instead, the interviewer should say: This position requires frequent overnight travel. Are you able to meet this job requirement? This elicits the desired information and legitimizes the area of discussion by relating the information to job requirements. Explain the reasoning behind sensitive questions. Applicants sometimes refer unfair labour practice disputes because they don t realize that seemingly inappropriate questions really are job related. Therefore, an interviewer has two tasks: to ask only relevant, job-related questions and to convey to the applicant the reasoning behind any questions that might appear to be sensitive. The following is an example of clarifying the requirements of a job: If a movie director needs an actor to portray Nelson Mandela, he legitimately could consider only black male applicants. To protect himself, his advertisement should state: Wanted: black male actor to play Mandela, rather than Wanted: black male actors. The first advertisement legitimizes the race and gender requirements and deters possible complaints. The same holds true in interviews. The interviewer should explain how the job requirements relate to a line of questioning before proceeding. This is a way to avoid disputes arising and potentially save your organization unnecessary expense. Listed on the next page are some examples of acceptable and unacceptable interview questions. Notice how the acceptable questions are specific and job related. Development Dimensions International, Inc., Revised

15 Unacceptable: How much could you travel? (This does not convey to the applicant the minimum requirements of the job.) Will it bother you that you ll be travelling with a man? Do you own your own home, or do you rent? Most of the people who work here are married. Do you think you d have any trouble fitting in? How many children do you have? Acceptable: The job requires 50 percent travel. Will that cause you any difficulty? Tell me about any interesting job-related experiences you have had in the past. You and your district manager will travel together during the first two months of your training. Does this present a problem? This job would require you to relocate. Is that a problem? 4.4 Pre-Employment Testing Background screening and testing on prospective employees can yield many advantages to an employer, including, successful appointments, reduced staff turnover rates, increased productivity and a safer working environment. The checks made include criminal record checks, credit checks, verification of academic qualifications, verification and checking of references, psychometric and medical testing. Psychometric Testing The Employment Equity Act prohibits psychological testing, and other similar assessments, unless the test or assessment (a) has been scientifically shown to be valid and reliable; (b) can be applied fairly to all employees; and (c) is not biased against an employee or group. It is important to ensure that such tests are used ethically, appropriately, fairly and equitably. Checking of References The giving of references is not directly regulated in our law. However the process of reference checking has become fraught with legal and operational risks and issues. It is therefore important that, prior to making enquiries in this regard the applicant s consent is obtained. The nature of the information requested from a referee should bear direct reference to the job requirements and job specifications of the new position. Development Dimensions International, Inc., Revised

16 Verifying Academic Qualifications and Results Bearing in mind that misrepresentations do occur with regard to academic qualifications, a prospective employer should verify the applicant s academic history and results. Medical Testing The Employment Equity Act prohibits all medical testing unless it is (a) permitted or required by legislation; or (b) justifiable in the light of medical facts, employment conditions, social policy, the fair distribution of employee benefits or the inherent requirements of the a job. 4.5 Decision-Making Process The decision-making process must be fair and objective and must relate directly to the inherent requirements of the position. An inherent requirement of a job relates to the core of the job description and may require distinguishing, excluding or preferring certain candidates. The inherent requirement must have such an impact that without such qualification the essence of the business operation would be undermined. It is ultimately the decision of the employer as to whom it wishes to employ. In Abbot v Bargaining Council for the Motor Industry (1999) 2BLOR 115 (LC) the Labour Court held that the appointment of an employee involves a degree of subjectivity but not of a discriminatory nature it is for the employer to decide whom it wishes to employ. The case of Du Preez v Minister of Justice & Constitutional Development & Others (2006) 8 BLLR 767 (SE) provides an interesting example of discrimination with reference to selection criteria. The case was brought under the Promotion of Equality and Prevention of Unfair Discrimination Act, 4 of The case concerned the criteria for the short listing of posts or regional magistrates in the Port Elizabeth area. The criteria included experience, qualifications, race and gender each criterion fell under a specific weighting. Candidates with the highest scores were placed on a short list. On review of the selection criteria the High Court held that the short listing formula raised an insurmountable obstacle for the applicant (a White male), and established an absolute barrier to his appointment to the post of regional court magistrate. The employer, not being subject to the Employment Equity Act, had not prepared and implemented an employment equity plan as contemplated in the Act. Nevertheless, the court expected the employer to set an example and have some formal and comprehensive affirmative action plan, which in an open democratic society, would be available to all interested parties. Only then would applicants for posts of judicial officers know where they stood. Accordingly, Du Preez was successful with his application to the Equality Court. Development Dimensions International, Inc., Revised

17 4.6 Responding to Request for Reasons Where an applicant has specifically requested detailed reasons as to why he/she was unsuccessful, these should be furnished. The reasons should specify the considerations involved in the selection process and the reasons for the applicant s unsuitability with reference to these criteria. 4.7 Retention of Unsuccessful Applications It is important that records be kept of the recruitment and selection process. This is to ensure that a written record exists if unsuccessful applicants should challenge the fairness of the selection process. Such records should include job specifications, copies of the advertisement, when and where published, records of application forms and CVs, interview records detailing questions and applicant s responses, reference checks and any testing conducted. A record must be kept of the reasons why an applicant was rejected. There is no law prescribing the minimum period of retention. However the recommended standard practice is 1 year. Development Dimensions International, Inc., Revised

18 Legal Questions Exercise Place a in the appropriate box to indicate whether or not the question is acceptable and may be asked in an interview. Space is provided after each question to record your rationale or notes for group discussion. A = Acceptable U = Unacceptable Questions A U Notes 1. This job requires you to handle large sums of money. Have you ever been convicted of theft? If so, can you give me details? 2. Frankly, many of our employees are Catholic. Do you think you d have problems fitting in here? 3. Do you wish to be addressed as Mrs., Miss or Ms.? 4. I m going to need a copy of your birth certificate with this application. Is that all right with you? 5. Are there any foreign languages you speak and write fluently? If so, what are they? 6. Do you have any relatives employed by this organization? 7. Would you be available for overtime work on Saturdays and Sundays? 8. Have you ever been married? 9. If you are not a SA citizen, do you have documentation that will allow you to work in SA? 10. Did you have any experience in your previous position relating to computers? Development Dimensions International, Inc., Revised

19 Questions A U Notes 11. The maximum entrance age for our retirement program is 40. Just out of curiosity, would you be eligible? 12. What would you do if your spouse got a job in another province? 13. Your regular workday would be 8 a.m. to 4 p.m., Saturday through Wednesday. Are there any reasons why you couldn t work these hours? 14. I d really like to get a reference from your pastor. Can you arrange that? 15. What an unusual name you have. What is your nationality? 16. We check all applicant credit ratings before an employment offer. Is it okay to check your credit rating? 17. Assuming we do everything we can to adapt the job to your situation, do you have any impairment (physical, mental or medical) that would interfere with your ability to perform the job for which you ve applied? 18. How many days were you absent from work last year? 19. This job requires an employee to transport 10-kilogram bags of frozen lima beans from a loading dock, down two flights of steps, to a processing machine. Can you perform this function with or without reasonable accommodation? 20. Have you ever been addicted to illegal drugs? Development Dimensions International, Inc., Revised

20 Legal Considerations Exercise Answer Key 1. This job requires you to handle large sums of money. Have you ever been convicted of theft? If so, can you give me details? Acceptable While it appears fairly clear that employment cannot be denied on the basis of arrests without convictions, the law is less than clear in the area of convictions. For most jobs, asking about convictions would not be job-related. However, in some positions and amongst certain types of employment categories, integrity and trust are vital. This is so in, for example, the banking and financial industry, or where the individual will be placed in a trusted position within the organisation (such as in the selection of police officers, bank tellers or in the case of senior executives). In such cases a conviction for a crime involving dishonesty may justifiably affect the person s suitability for the position. It may not be acceptable as a general question when the conviction is (1) not relevant to the job or where the applicant was convicted of a relatively minor offence (such as failure to pay a speeding fine) or where the conviction took place a long time in the past. Statistics show that more people from historically disadvantaged groups than others have been convicted of crimes. Thus, a refusal to hire based on conviction of a crime can have a disparate effect on previously disadvantaged groups and could lead to claims of unfair discrimination. As a general rule, however, an employer should not refuse to hire an applicant because of a conviction record unless it is shown that the nature of the conviction makes such employment manifestly inconsistent with the safe and efficient operation of that particular job. 2. Frankly, many of our employees are Catholic. Do you think you d have problems fitting in here? Unacceptable Religion Discrimination This question is potentially discriminatory. Unless the person is applying for the position of a Catholic priest (in which case being Catholic will probably be an inherent requirement of the job), inquiries concerning an applicant s religious denomination or affiliations, church, parish pastor or religious holidays observed will be irrelevant and unacceptable. Development Dimensions International, Inc., Revised

21 3. Do you wish to be addressed as Mrs., Miss or Ms.? Unacceptable Marital Status Discrimination This question may lead to claims that the employee was unfairly discriminated against on the basis of his / her marital status. It is permissible to ask, How do you wish to be addressed? 4. I m going to need a copy of your birth certificate with this application. Is that all right with you? Unacceptable Possible Discrimination on the Grounds of Ethnic or Social Origin, Age, or Birth. It could attract risk to require an applicant to submit documents such as a birth certificate, naturalization or baptismal record prior to employment, unless the employer can justify why these documents are necessary for the selection process. You may ask for a birth certificate after you have hired the individual, if this is required (for example, for applying for a work permit on behalf of the employee). In addition, according to the Immigration law, organizations may hire only South African citizens or aliens who are authorized to work in South Africa. Thus, verification of employment eligibility must be obtained at the time of the job offer. TIP: If you ask this question at the time of the job offer, you must ask it of all candidates to whom you offer a job. 5. Are there any foreign languages you speak and write fluently? If so, what are they? Unacceptable Possible discrimination on the grounds of Ethnic or Social Origin or Language. If knowledge of a specific language is necessary, then it can be asked in the following way: Fluency in Portuguese is necessary to perform this job. Do you speak Portuguese fluently? The problem with asking a general question about language is that it looks like a fishing expedition for information that would eliminate a candidate on a discriminatory basis of national origin. 6. Do you have any relatives employed by this organization? Acceptable It is acceptable to ask the names of an applicant s relatives already employed by the company or any competitor, particularly if there is a formal nepotism policy in the organization. However, this question might reflect a preference for relatives (or friends) of current employees. It may also constitute indirect discrimination if this question has the effect of reducing employment opportunities for women or Development Dimensions International, Inc., Revised

22 minorities. This could happen if the present workforce had a significantly smaller proportion of women or minority groups than the qualified labour force in the population of the area in which the company is located. The question also might reflect a rule that only one partner in a marriage may work for the company. This might have a disproportionate effect on women, and such a rule may serve no necessary business purpose. However, if the question is intended to avoid placing relatives where one supervises the other, or where a conflict of interest could arise, it is acceptable. 7. Would you be available for overtime work on Saturdays and Sundays? Unacceptable Possible Religion or Family Responsibility discrimination This question is phrased without reference to the inherent requirements of the job and could therefore be considered discriminatory. If the requirements of the job are such that overtime or work on weekends is required from time to time, it would be acceptable for an employer to enquire about this. However the question should be phrased in such as way so as to describe the inherent requirements of the job and then enquire as to whether the employee would be able to meet these requirements. If such questions are asked, it is desirable to indicate that reasonable effort will be made to accommodate the employee (in respect of religious and family responsibility requirements, for example). For example, if a prospective employee s Sabbath observance would prevent him or her from working overtime on Saturday, but he or she instead could be scheduled for Sunday overtime with little disruption to the business, no undue hardship to the company could be shown. If, however, a particular skill was to be performed on Saturdays, and no qualified replacement would be available for him or her, the employer would not be discriminating if he or she refused to hire the applicant. 8. Have you ever been married? Unacceptable Marital Status Discrimination Asking this question may expose the company to risk of a claim that the employee is being discriminated against on the grounds of his or her marital status. This question is not job related and is therefore irrelevant. Development Dimensions International, Inc., Revised

23 9. If you are not a SA citizen, do you have documentation that will allow you to work in SA? Acceptable Under SA law, asking whether an applicant is legal to work in South Africa is not only permissible, but also legally required. Generally, one should not ask about the applicant s country of origin. Likewise, unless there is a bona fide business reason for refusing employment to an alien (for example, no work permit), a refusal to hire based on citizenship/ birth alone might be discriminatory. Also, refusal to hire aliens of one nationality while hiring other aliens could amount to discrimination on the basis of ethnic or social origin or birth. 10. Did you have any experience in your previous position relating to computers? Acceptable Questions about previous employment experience or training are permissible in order to determine the employee s skills, qualifications and experience for the position being applied for. 11. The maximum entrance age for our retirement program is 40. Just out of curiosity, would you be eligible? Unacceptable Age Discrimination An employer cannot refuse to hire a worker merely because age makes the employee ineligible for inclusion in the employer s benefits plan. However, the employer does not have to give older workers the same pension, retirement, or insurance benefits given to younger workers, so long as the differential is in accordance with a bona fide plan. A plan is considered bona fide if the actual amount of payment made or cost incurred on behalf of an older worker is the same as that for a younger worker, even though the older worker might receive less in benefits or coverage. Note: Do not ask any questions out of curiosity. Only ask questions that are directed at establishing the employee s suitability for the position with reference to the inherent requirements of the job. Development Dimensions International, Inc., Revised

24 12. What would you do if your spouse got a job in another province? Unacceptable Marital Status Discrimination/ Irrelevant Specific inquiries about a spouse s employment are not job-related and considered unacceptable pre-employment questions. Note: Generally avoid hypothetical questions, unless the intention is to explore how the employee would react to a set of circumstances that are likely to occur in the work environment. 13. Your regular workday would be 8 a.m. to 4 p.m., Saturday through Wednesday. Are there any reasons why you couldn t work these hours? Acceptable You are stating the requirements of the job and merely asking if the person can meet those demands. 14. I d really like to get a reference from your pastor. Can you arrange that? Unacceptable Religion Discrimination It is unacceptable to require the submission of a religious reference. It is acceptable however (and advisable) to ask for references in general, especially from previous employers. 15. What an unusual name you have. What is your nationality? Unacceptable Ethnic and Social Origin Discrimination Inquiries about the applicant s name (or previous name) that would indicate lineage, ancestry, ethnic or social origin, or descent could lead to adverse inferences of discrimination. 16. We check all applicant credit ratings before an employment offer. Is it okay to check your credit rating? Acceptable Even where a person s credit history has no bearing on the position, this may be done provided that such checks are conducted in respect of all the applicants. It is also advisable to obtain the employee s consent in respect of such testing. However, while this question seems to be non-discriminatory because it is asked of all applicants, it must be borne in mind that it might have a discriminatory effect. Because historically disadvantaged people tend to have a higher percentage of poor credit ratings, inquiries in this area might evidence discrimination. In court, the Development Dimensions International, Inc., Revised

25 burden would be on the employer to prove that there was a business necessity for making such a credit check. Note: In certain positions and amongst certain types of employment categories, integrity and trust are vital. This is so in, for example, the banking and financial industry or where the individual is placed in a trusted position within an organisation. In such case it is essential to conduct thorough pre-employment credit checks via an independent organisation, such as ITC, trained and equipped for the task. 17. Assuming we do everything we can to adapt the job to your situation, do you have any impairments (physical, mental or medical) that would interfere with your ability to perform the job for which you ve applied? Unacceptable Disability Discrimination Equity Act specifically prohibits discrimination on the grounds of disability. An employer is required to make reasonable accommodation for qualified applicants with disabilities with the view to creating equal and fee advancement opportunities for people with disabilities. The question worded this way asks the applicant to admit that he or she has a disability. The question should rather be structured in a way that only the required information is obtained regarding the position and the applicant s ability to perform in terms of the inherent requirements of the job. In other words, interviewers should not ask about an applicant s disability, but should ask about his or her ability to perform essential functions, once they ve been described. A more appropriate way for interviewers to ask this question is to state each job requirement in terms of an essential function and ask if applicants would be able to perform that function with or without reasonable accommodation. When interviewers phrase the question this way, applicants have the opportunity to assert their abilities, given reasonable accommodation. This in no way reduces the obligation of the hiring organization to think of, and make available, any reasonable accommodation. 18. How many days were you absent from work last year? Acceptable Asking how many days a candidate was absent might be job related in order to ascertain past reliability in attendance. Interviewers must be careful, however, not to ask how many days the candidate lost due to sickness as this may indicate an intention to enquire into a possible disability or illness, which would be inappropriate Development Dimensions International, Inc., Revised