With the legacy of Apartheid, South Africa understood that discriminatory laws could not simply be repealed. Instead, laws obligating equal treatment had to be instilled. The EEA was therefore enacted through parliament in 1998 with the aim of eliminating unfair discrimination in employment and creating a framework for the implementation of affirmative action measures.
The EEA applies to all persons defined as an ‘employee’ or ‘employer’ within the context of the Labour Relations Act, and to job applicants. Accordingly, Section 213 of the Labour Relations Act provides that an employee is:
- any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive, any remuneration; and
- any other person who in any manner assists in carrying on or conducting the business of an employer.
According to Article 5 of Chapter II of the EEA - The Prohibition 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. These are the so called affirmative action measures and they refer to the procedures in place that aim to ensure that equally qualified individuals from designated groups have equal opportunities in the workplace, and are equitably represented in all occupational categories and levels in a work force.
In addition to the 16 prohibited grounds of discrimination listed within the Constitution, Article 6 (1) of the EEA further includes the following three grounds: family responsibility, HIV status, and political opinion. Article 6 (3) additionally provides that harassment is a form of unfair discrimination.
Chapter III- Affirmative Action - of the EEA lays out the provisions for affirmative action measures in greater detail.