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The recently proposed amendments to the Employment Equity Act (‘EEA’) created much discussion and concern. The concern arose from both the substance of some of the proposals 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) will not be promulgated in their current form. We are likely to see, at some point in the not too distant future, better considered and drafted proposals for change.

One can expect that greater emphasis would be placed on employers’ obligations regarding affirmative action in terms of Chapter 3 of the EEA. Employers in the private sector 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.

So what have the courts said so far about affirmative action? The following is a summary of the principles the courts have developed in the numerous cases over the years dealing with affirmative action:
• Those acting in a higher position do not have a right to be promoted to that position, but must be treated fairly;
• 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, skills or promotion of representivity;
• Internal applicants should 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 in justifying appointment or promotion to a position, but may create evidentiary problems;
• When applying affirmative action, employers should not only focus on past disadvantage, but also on 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;
• Because there is no right to affirmative action, a designated person cannot demand, as a right, to be retained in a retrenchment exercise in favour of persons from non-designated groups who have skills better suited to available positions;
• Mechanical compliance with the prescribed processes of the EEA is not genuine compliance with the letter and spirit of the EEA;
• 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 to fill senior posts, even if that excludes members of the designated groups;
• Where an affirmative action plan contains a ‘sunset clause’, the exclusion of non-designated 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;
• The extent to which the implementation of an employment equity plan could discriminate or adversely affect individuals is limited by law;
• 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;
• 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, the courts have been trying 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).

This article is by Prof. Barney Jordaan of Maserumule Employment Consultancy for

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