EEAAk! Arithmetic of race

The Employment Equity Amendment Act – given the horrified reactions let’s just call it EEAAk! – has unleashed a furore.

The conceptually complex Act is, even by ANC standards of incompetence, exceptionally poorly drafted. It’s filled with legal ambiguities that invite challenges all the way to the Constitutional Court.

Also, crucially for legislation that in effect shifts the onus for regulation from government officials on to the self-policing shoulders of business, is the issue of consultation with those affected.

Targets

Marleen Potgieter, the director of a Cape Town employment equity consultancy, tells me Minister of Employment and Labour Thulas Nxesi’s statement that the published demographic targets, the main cause of the consternation, were only put in place after “stakeholder engagements” is untrue.

In 2020 already, the textile and clothing industry submitted to the minister an analysis of what would constitute realistic targets based on actual numbers in their sector.

“To date, they have not heard back from him,” she says.

Race-based legislation

The Democratic Alliance pegged EEAAk! as pernicious race-based legislation that will discourage local and foreign business startups, and possibly cost 600 000 jobs over the next five years.

The ANC, in turn, insists criticism is based on misinformation and craven racism. But as befits a deeply divided government, its justifications are contradictory and vary according to the audience.

On the one hand, Nxesi has said there was a need for “aggressive” legislation to compel corporate SA to improve the race and gender balances in the least “transformed” sectors.

On the other hand, the party says the Act is a benign adjustment that merely affects big businesses seeking to do business with the state and that will ease the compliance burden on companies with fewer than 50 employees.

Job levels

The four job levels affected by EEAAk! are top management, senior management, professionally qualified workers and skilled workers.

Solidarity’s analysis of the targets shows that if conscientiously implemented we are entering an Orwellian landscape.

“To meet the national sectoral targets, two out of three white people, two out of three Indians and one out of four coloureds must vacate their jobs in the top four job levels,” it said.

The angry rebuttal of Solidarity’s analysis hinges on nomenclature. Solidarity is being roasted for implying EEAAk! targets will be enforced as quotas. In theory, the defenders of the Act are correct.

ConCourt ruling

Since the Constitutional Court has ruled that “targets” and “goals” pass legal muster but “quotas” do not, the Department of Employment and Labour will not prosecute corporates.

But the prospect of fines (up to 10% of turnover) and not being allowed to tender for state contracts means they won’t have to.

Business will do the government’s dirty work for it. A perfect illustration was last year’s contretemps around Dis-Chem chief executive Ivan Saltzman’s moratorium on hiring whites because of the multiplier effect on employment equity targets.

His approach was no different from that of every other corporate in SA. His mistake was putting it in writing. Such is the crude and reductionist arithmetic of race.

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