Unfair discrimination on the basis of an inequality in pay
– between male and female staff, or staff of different ethnic
or racial groups or any other arbitrary ground – is unlawful
in terms of the Employment Equity Act.
But the opposite position – that there can be fair
discrimination – also applies.
Even if there is a difference between pay or terms and
conditions (which legally would be recognised as the employer
discriminating between an employer and another, comparator
employee), this discrimination may not always be unfair and a
conclusion of inequality cannot automatically be drawn.
Certainly, if an employee complained of pay discrimination and
was female for example, and otherwise of the same status,
seniority, experience level and educational qualification as a
comparator male employee, the reason for the difference may be
solely the fact that she is female.
