(Government Gazette of the Republic of Namibia, 8 April 1992, No. 388, pp. 1-151.)
PART XIII. AFFIRMATIVE ACTION AND COMPLAINTS IN RELATION TO UNFAIR DISCRIMINATION OR HARASSMENT
Section 106. Affirmative action.
(1) Nothing contained in this Part or any other provision of this Act, shall be construed as prohibiting any employer or person—from implementing any employment policies and practices aimed at the advancement of persons—who have been disadvantaged in the labour field by discriminatory laws or practices which have been enacted or practised before the independence of Namibia.
(2) The provisions of this Part, in so far as they provide for the implementation of a policy or practice which may diminish or derogate from the fundamental rights contemplated in Article 10 of the Namibian Constitution of any employer or employee other than an employer or employee referred to in subsection (1), are enacted upon the authority of Article 23 of the Namibian Constitution.
Section 107. Unfair discrimination or harassment in emplovment or occupatiofl. (1) Subject to the provisions 67f section 106 and subsection (2) of this section, if, upon an application made to the labour Court in accordance with the provisions of Part IV by any person, the Labour Court is satisfied:
(a) that any person has discriminated or is about to discriminate in an unfair manner, or is so discriminating against him or her on the grounds of his or her sex, race, colour, ethnic origin, religion, creed, social or economic status, political opinion or marital status or his or her sexual orientation, family responsibilities or disability, in relation to his or her employment or occupation;
(b) that in his or her employment he or she has been, is being or is or is about to be subjected by any other person to any harassment by virtue of his or her sex, race, colour, ethnic origin, religion, creed, social or economic status, political opinion or marital status or his or her sexual orientation, family responsibilities or disability;
(c) that any person has published or displayed or caused to be published or displayed or is about to publish or display any advertisement or notice which indicates an intention to unfairly discriminate in the employment or occupation of persons on the grounds of sex, race, colour, ethnic origin, religion, creed, social or economic status, political opinion or marital status or his or her sexual orientation, family responsibilities or disability;
the Labour Court may:
(i) issue an order in terms of which such person is ordered:
(aa) in the case of continuing acts of unfair discrimination or harassment, to discontinue any such acts as may be specified in such order;
(bb) to perform, or to refrain from performing, any act specified in such order;
(cc) to discontinue any such publication or display or to refrain from publishing or displaying any such advertisement or notice;
(ii) make any such other order as the circumstances may require.
(2) For purposes of the provisions of subsection (1), a person shall not be regarded to have been unfairly discriminated against, if:
(a) any person is selected for purposes of employment or occupation according to reasonable criteria, including but not limited to, the ability, capacity, productivity and conduct of that person or in respect of the operational requirements and needs of the particular occupation or work in the industry in question;
(b) in the case of a female person who is pregnant or a disabled person, such female person or disabled person is, in consequence of such female person’s pregnancy or such person’s disability, incapable of performing the duties or functions connected to the occupation or work in question or is so prohibited by law.
(3) For purposes of the provisions of subsection (1) a person shall be regarded to have been or about to be unfairly discriminated against on the grounds of sex, if in terms of any term and condition contained in a contract of employment entered into with an employer, such person is by virtue of his or her employment entitled to any condition of employment which is less favourable than any condition of employment to which any other person of the opposite sex is entitled for work of equal value.
(4) When in any proceedings in terms of the provision of this section, it is proved that any act performed or any requirement by an employer in relation to the employment or occupation of any person or group of persons affected thereby, has, an adverse effect on such person or group of persons if such effect of any such act or requirement is, compared with the effect thereof on any person or group of persons, who is of a different sex, race, colour, ethnic origin or who has a different religion, creed, social or economic status, political opinion, marital status, sexual orientation or who has no family responsibilities or who is not disabled, it shall be presumed, unless the contrary is proved, that such employer has unfairly discriminated against such person or group of persons as contemplated in subsection (1).
(5) For purposes of the provisions of this section:
(a) “disability”, in relation to any person, includes any physical or mental disability which impairs or restricts such person’s preparation for, entry into or participation or advancement in, employment or occupation;
(b) “employment or occupation”, in relation to any person, includes such person’s:
(i) access to vocational guidance, training and placement services;
(ii) access to employment, occupation or work;
(iii) promotion, demotion and transfer;
(iv) remuneration or other conditions of employment;
(v) discipline, suspension or termination of employment;
(vi) access to any other benefits, facilities or services;
(c) “family responsibilities”, in relation to any person, means the responsibilities of any person towards his or her dependent children in need of his or her care and support which impai rs such person’s preparation for, entry into or participation or advancement in, employment or occupation;
(d) “work of equal value”, in relation to an employee means work:
(i) which is of the same or compared with any other work is broadly of a similar nature which, having regard to any frequency with which any differences in relation to such first-mentioned work and such other work occur and the natural extent of such differences, does not justify the determination of conditions of employment which differs from the conditions of employment prevailing in respect of any employee of the opposite sex performing such work;
(ii) which requires skills, abilities, responsibilities, working environment or other requirements which are of equal value to employees belonging to any sex.