Employment equity plan: Discriminatory appointment

2 Comments

1. 

   GilesFiles on July 26, 2016 at 7:22 am

   Comment by Professor Darcy du Toit in his latest Weekly Comment in IR Network published by LexisNexis [subscription required]
   Much ado about – what exactly?

   The average person will readily accept that “A” is not the same as “A + B”. Not so the Department of Correctional Services, which went all the way to the Constitutional Court to have this seemingly obvious fact spelled out in relation to affirmative action measures (for the third time, following identical rulings by the Labour Court and Labour Appeal Court). And in Solidarity & others v Department of Correctional Services & others (Case CCT 78/15, 15 July 2016) the court did exactly that, even though the relevant provision of the Employment Equity Act (EEA) had in the meantime been amended.
   . . . . . .
   The problem was that section 42(a) of the EEA at the time required employers to consider the “demographic profile of the national and regional economically active population” (emphasis added) in seeking to achieve “equitable representation” of persons from different designated groups. The Department, however, deliberately chose to disregard the regional profile.
   . . . . . .
   However, the point was by now of little consequence. The 2014 amendments to the EEA had changed section 42(a) to state that compliance “may” be measured against national and regional demographics. Whether the Department did or did not base its plan on national and/or regional demographics, in other words, was no longer decisive.
   Instead, the focus is shifted to the binding criteria for affirmative action measures as set out in section 15, summed up as “measures designed to ensure that suitably qualified people from designated groups have equal employment opportunities and are equitably represented in all occupational levels in the workforce of a designated employer”.
   “Equitable representation”, thus, becomes a more flexible concept and the weight to be accorded to national or regional demographics (if any) falls to be determined on a case-by-case basis, subject in the case of public-sector employers to the overarching criterion of rationality. Of course, in provinces where there are significant differences between national and regional demographics, the question of how to weigh up one against the other may continue to play a part. But that was not a question which the court needed to address in the present matter.
   . . . . . .
   The problem is this: section 11 deals with proving the existence of alleged unfair discrimination, not the unfairness of discrimination which has already been proved. Section 11(1)(b) provides that, if unfair discrimination is “alleged” on a listed ground (such as race), the respondent employer must prove that “such discrimination” was “rational and not unfair” or “otherwise justifiable”.
   Zondo J, however, interpreted this as follows:
   “I shall take section 11(1)(b) to require that the employer must show that the discrimination was rational and not unfair or is otherwise justifiable” (para 82).
   This appears to overlook the fact that “such discrimination” refers to discrimination that has been alleged but not yet proved – in effect, requiring the employer to show the fairness of the conduct which is complained of. Yet, somehow, “alleged discrimination” has morphed into actual discrimination.
   The point may seem marginal, but the implications are important. If section 11 is read as allowing the justification of out-and-out discrimination on grounds such as race, it would not only water down protection against such discrimination; it would be in head-on conflict with international law on the subject.
   . . . . .
   Systematically implementing such measures could do much to reduce inequality and promote employment equity through appointments based purely on merit, without reference to undoing a history that most South Africans would be happy to put behind them.

2. 

   GilesFiles on September 9, 2016 at 4:26 pm

   Reported
   [2016] 10 BLLR 959; (2016) 37 ILJ 1995 (ConCourt)
   BLLR headnote:
   Discrimination – Affirmative action – Coloured and female employees refused promotion on basis of plan that set numerical targets based on national, as opposed to regional demographics – Unfair discrimination proved.