Affirmative Action: where the law stands at present

Jun 9, 2011

Articles

The proposed amendments to the Employment Equity Act (‘EEA’), which were published in
December 2010 created much discussion and concern. The concern arose from both the
substance of some of the proposals – e.g., how to ensure quicker and more stringent
enforcement of the EEA’s affirmative action provisions – and the poor manner in which they were
drafted. For now, it would appear that the proposed changes (as well as proposed changes to the
LRA and the BCEA) have been shelved. Word has it that the labour market parties at Nedlac, i.e.
government, organised labour and organised business, will at some point in future develop fresh,
and hopefully better considered and drafted, proposals for change. Nevertheless, change will
happen at some point in the foreseeable future and one can expect that greater emphasis will be
placed on employers’ obligations with respect to affirmative action, contained in Chapter 3 of the
Act. This article takes a brief look at what the courts have said to date about affirmative action, its
limits and its implementation. But first, it might be useful to provide some context.

Statistics from last year’s Employment Equity report by the Employment Equity Commission,
established under the EEA, suggest that while good progress has been made in terms of
representation of designated groups at most levels in the private sector, there has been slow
progress at the more senior levels. While some (including people in the Department of Labour)
have blamed business for being ‘anti-transformation’ or at least tardy in their commitment to
affirmative action, there is reason to believe that our skills shortage at those senior levels is real
and could provide at least part of the answer to the lack of transformation at the top of the
organisational pyramid. A report in Sake24 dated 11 May 2011, quoting statistics from Adcorp’s
Recruitment Index, states that roughly 829 800 vacancies existed in SA for ‘highly skilled’
employees. This includes positions in management, accounting, medicine, engineering, law,
specialised technicians and artisans. This contrasts with unemployment figures of roughly
967 000 and 247 400 among entry level job seekers and domestic workers, respectively.

Since 2000, the shortage of highly skilled employees has resulted in an inflation adjusted
increase of 286.4% in the salaries of people in that category – scarce skills simply became more
expensive. Meanwhile, the National Skills Fund is reportedly sitting on roughly R3.5 billion for
skills development which it has yet to distribute.

What all of this means is that employers in the private sectors will have to contend with two
opposing pressures, one coming from organised labour and government for quicker
transformation and the other from the labour market. This is likely to result not only in greater and
more frequent demands from trade unions in particular but probably also an increase in the
Department of Labour’s vigilance and in litigation around affirmative action issues.

What we do know about affirmative action

So, what have the courts said so far about affirmative action? Herewith a summary of the
principles the courts have developed in the numerous cases over the years dealing with
affirmative action:

  • So, what have the courts said so far about affirmative action? Herewith a summary of the
    principles the courts have developed in the numerous cases over the years dealing with
    affirmative action:
  • where internal applicants are involved, the decision not to appoint them must comply with
    internal procedures and be based on rational grounds, e.g., suitability, skill or promotion
    of representivity;
  • internal applicants may be able to challenge their non-appointment to a higher position
    on the basis of unfair discrimination and unfair labour practice;
  • the absence of a plan is not fatal to an employer’s reliance on affirmative action, but may
    create evidentiary problems for it;
  • when applying affirmative action, employers should not only focus on past disadvantage,
    but also, the retention of skill and the efficient operation of the organisation or, in the
    public sector, service delivery and good administration;
  • the mere fact that a white person is appointed to a position and that the unsuccessful
    candidate happens to belong to a different race does not necessarily constitute race
    discrimination under the EEA;
  • there is no right to affirmative action in our law;
  • there is no right to affirmative action in our law;
  • because there is no right to affirmative action, designated person cannot demand, as of
    right, to be retained in a retrenchment exercise in favour of persons from non-designated
    groups who have skills better suited to available positions;
  • because there is no right to affirmative action, designated person cannot demand, as of
    right, to be retained in a retrenchment exercise in favour of persons from non-designated
    groups who have skills better suited to available positions;
  • compliance is not an end in itself – employers must systematically develop the workforce
    out of a life of disadvantage;
  • there are special requirements to be met before one can succeed in a claim for
    discrimination based on a ground not listed in the EEA;
  • provided the requirement is genuine, there is nothing wrong with an employer requiring
    proven managerial experience in the filling of senior posts, even if that excludes
    members of the designated groups;
  • where an affirmative action plan contains a ‘sunset clause, the exclusion of nondesignated candidates in favour of less qualified persons from the designated groups
    may constitute unfair discrimination if equity targets have been achieved in a particular
    job category; and
  • designated persons who are not appointed because they fell out of consideration
    following a fair selection process and in terms of which a more suitable non-designated
    person was selected, cannot claim unfair discrimination;
  • designated persons who are not appointed because they fell out of consideration
    following a fair selection process and in terms of which a more suitable non-designated
    person was selected, cannot claim unfair discrimination;
  • in implementing employment equity, the affected employee’s right to equal treatment
    before the law and to dignity must be recognised;
  • where a suitable person from an under-represented group cannot be found, the
    promotion of someone from a different group should not be denied without a clear and
    satisfactory explanation; and
  • there has to be a rational connection between the provisions of the employment equity
    plan and the measures adopted to implement its provisions. In the case of the State, due
    regard must be given to the efficient operation of the public service;
  • it has not yet been decided whether an employer is entitled, rather than obliged, to take
    race or gender into account when selecting the employees to be dismissed in a
    retrenchment exercise.

In summary then, the courts try to find a balance between the competing needs for greater
representivity of designated groups at all levels in the workplace on the one hand, and the right
to equality of individuals from the excluded groups (minorities among the designated categories
or non-designated people, i.e., able-bodied white males).

June 2011
Author: Barney Jordaan

This information is published for general information purposes and is not intended to constitute legal advice and should not be construed as such. Specialist legal advice should always be sought in relation to any particular situation. Maserumule will accept no responsibility for any actions taken or not taken on the basis of this publication. Consent must be obtained from Maserumule before the information provided herein is reproduced in any way. No person shall have any claim of any nature whatsoever arising out of, or in connection with, the information provided herein against Maserumule and/or any of its personnel.

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