Government may have to rethink legality of affirmative action and employment equity

Minister of Labour Mildred Oliphant has called on the National Economic Development and Labour Council (Nedlac) and its social partners to study a report from the South African Human Rights Commission (SAHRC) on affirmative action policy.

Oliphant was addressing delegates at the opening of the 23rd Nedlac Annual Summit in Pretoria on Friday.

“I have been advised that the SA Human Rights Commission conducted an investigation on the constitutionality of affirmative action policy cum employment equity.

“To this end I am advised that a report was released with a conclusion that both the affirmative action policy and the Employment Equity Act were unconstitutional and not in sync with international conventions,” Oliphant said.

She said the recommendations made by the SAHRC required special attention.

“The report makes various recommendations on what needs to be done, including a recommendation to amend the Employment Equity Act. The Commission has given government six months to report back on steps taken to give effect to its recommendations.

“It follows therefore that the Nedlac social partners need to study this report and advise on its stance.

“It might even be useful to seek an audience with the commission in order to understand the basis for its report, findings and the recommendations.

“This is important given that all our labour laws have to pass constitutional scrutiny before they can be signed into law,” she said.

The commission in its Equality Report 2017/18 recommended:

1. The definition of designated groups as contained in the Employment Equity Act, 55 of 1998 (EEA), and the current system of disaggregation of data could give rise to new imbalances in the labour market.

2. Affirmative action measures must be targeted at groups and individuals who are subject to unfair discrimination, in order to eventually achieve substantive equality and a society based on non-racialism and non-sexism.

3. Decisions based on insufficiently disaggregated data fail to target persons or categories of persons who have been disadvantaged by unfair discrimination, as required by the three-pronged test for affirmative action.

4. Without first taking the characteristics of groups into account, varying degrees of disadvantage and the possible intersectionality of multiple forms of discrimination (based on race, ethnicity, gender or social origin) faced by members of vaguely categorised groups, cannot be identified.

5. As such, the SAHRC’s finds that the (EEA) be amended to target more nuanced groups on the basis of need and should take into account social and economic indicators.

6. Once the objective of affirmative action, namely substantive equality, is achieved, temporary special measures should cease. However, given the persistence of gross inequality in South Africa – and despite policies aimed at radical socio-economic transformation – much remains to be done before this goal is reached. Currently, special measures in the employment equity context raise several concerns in respect of the requirement for affirmative action to promote equality.

7. It is therefore clear that affirmative action and reasonable accommodation are designed to both provide initial economic opportunities to disadvantaged groups by prioritising their appointment but continue to apply once people from such groups have entered the workforce.

Republished from Zululand Observer