According to Johan Botes, Employment Director at Cliffe Dekker Hofmeyr, “The facts of each vacancy should be considered in determining whether the conduct of the employer will be fair. Where an employer excludes candidates totally, such exclusion could amount to unfair discrimination unless the employer can satisfy the court that it acted fairly, in accordance with its employment equity plan, in excluding groups of candidates.
“Employers who have already reached the targets in their employment equity plans will have difficulty in relying on the employment equity defence contained in section 6(2)(a) of the Employment Equity Act (EEA) to justify the discrimination against non-designated groups. 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,” Botes explains.
He adds that in most cases, though, employers should tread carefully when creating absolute barriers for entry for entry for people from non-designated groups. Such a practice may fall foul of the provisions of sections 16 and 42 of the EEA.