substantially the same work or work of equal value that is directly or indirectly based on any
one or more grounds listed in subsection 6(1) or on any other arbitrary ground.
2.1. Medical testing: Section 7
(a) Medical testing of an employee is permissible only when legislation requires testing or when
this is justifiable for various reasons.
(b) HIV testing is prohibited unless such testing is determined to be justifiable by the Labour Court.
2.2. Psychometric testing: Section 8
Psychometric testing and other similar assessments of an employee are prohibited unless the test or
assessment being used has been scientifically shown to be valid and reliable, can be applied fairly to
all employees, is not biased against any employee; and has been certified by the Health Professions
Council of South Africa (HPCSA) established under the Health Professions Act, 56 of 1974 or any
other body which may be authorized by law to certify such tests or assessments.
2.3. Disputes concerning Chapter 2: Section 10
(a) An employee, or applicant for employment, may refer a dispute concerning alleged unfair
discrimination, medical or psychological testing to the CCMA for conciliation. This must be done
within six months of the alleged discrimination or testing.
(b) If a dispute is not resolved after conciliation, any party to the dispute may refer it to the Labour
Court for adjudication. The parties to a dispute may also agree to refer the dispute for
arbitration.
(c) Unfair dismissal disputes in which unfair discrimination is alleged must be dealt with in terms of
the Labour Relations Act. The dismissal must be referred to the CCMA within 30 days.
(d) An employee may refer a dispute to the CCMA for arbitration if :–
(i) the employee alleges sexual harassment; and
(ii) in any other case, where the employee earns less than the amount prescribed by the
Minister in terms of section 6(3) of the Basic Conditions of Employment Act; or
(e) Any party may refer the dispute to the CCMA for arbitration.
3. Chapter III – Affirmative Action
3.1 Duties of a designated employer: Section 13
(a) A designated employer must implement affirmative action measures for designated groups to
achieve employment equity.
(b) In order to implement affirmative action measures, a designated employer must-
(i) Consult with employees;
(ii) Conduct analysis;
(iii) Prepare an Employment Equity Plan; and
(iv) Report to the Director-General on progress made in the implementation of the plan.
3.2 Affirmative action measures: Section 15
(a) Affirmative action measures are measures intended to ensure that suitably qualified employees
from designated groups have equal employment opportunities and are equitably represented in
all occupational levels of the workforce.
(b) Such measures must include:
(i) Identification and elimination of barriers with an adverse impact on designated groups;
(ii) Measures which promote diversity;
(iii) Making reasonable accommodation for people from designated groups;
(iv) Retention, development and training of designated groups (including skills development);
and