National Association of Democratic Lawyers (NADEL)
Human Rights Research and Advocacy Project

The Nadel Human Rights, Research and Advocacy Project is a non-governmental human rights organisation, initiated by the National Association of Democratic Lawyers (Nadel). Our aim is to promote an understanding of human rights amongst the historically disadvantaged by developing a participatory human rights culture through research, publications, monitoring and advocacy work.

The Employment Equity Bill

The Nadel Human Rights, Research and Advocacy Project welcomes the Employment Equity Bill as an important step to creating a human rights culture and environment at the workplace. The Bill is in line with our Constitution’s equality provision and anti-discrimination provision as it provides for the creation of conditions that should facilitate the transition to true equality.

The lifting of apartheid laws has not in itself overcome the effects of the disempowerment of black people and women, hence the need for affirmative action programmes - a set of procedures aimed at pro-actively addressing the disadvantages experienced by sections of South African community in the past.

Although the promotion of black people and less so women within South African companies is fairly common, very often the appointments are token rather than a process of substantially transforming policies and working environment.

The roots of the problems experienced by workers in a workplace are not personal or individual. This is the result of apartheid inequalities.

Upward mobility is not a process that is historically inclusive - most black people and women are still at the bottom of the ladder. The burden of lack of skills borne by black people and women is a direct result of discrimination which the upward mobility argument does not take into account. It denies the fact that the opportunity to acquire higher skills which would make climbing the ladder a natural process, is not provided.

Therefore, there is a need to develop employment, training and promotion policies that recognize not only the unevenness of progress, but also its underlying reasons. Policies which will promote fairness, justice and equality.

The Employment Equity Bill which aims to eliminate inequality and discrimination in the workplace is a tool facilitating firms, organizations etc. to make a attitudinal change in the workplace. An attitudinal change, especially towards previously disadvantaged people, that will hopefully adopt positive measures proposed by the Bill.

These include:
• the identification and elimination of employment barriers (including unfair discrimination);
• affirmative action measures; including preferential treatment in appointments and the promotions of suitably qualified people, and
• measures to retrain, train and develop people.

The Nadel Human Rights, Research and Advocacy Project would like to make the following comments and recommendations:

Support for the Equity Alliance’s Submission:
As a human rights project and member of the Alliance, we firmly support the recommendations put forward by the alliance. We regard the inclusion of HIV as a disability as well as black women, as a separate category, to be critical in encouraging non-discriminatory processes in the workplace.

2. Poverty and the Apartheid wage gap:
Politicians, including the ex-Minister of Labour, agree that the greatest challenge facing South Africa is the gap between the rich and the poor. In the December 1997 version of this Bill, the introductory memorandum referred to recent ILO surveys which reflected this gap. What happened to these remarks in this copy of the Bill? It is a disappointment that issues of poverty and wage gap not addressed in the Bill.

The Apartheid wage gap - usually described as one of the largest in the world - is now being legitimised by the re-colouring of management. A few black faces at higher levels of employment make it easier to forget that most black faces remain amongst the poor and marginalised where the disparity between the lowest and highest paid employee in South Africa is 100:1.

Supporting COSATU’s submission, we emphasize that closing the wage gap should be a central element of this Bill and that the Bill should not only emphasize horizontal equity ( racial and gender representivity within a particular strata), but vertical equity ( the wage disparities).

We would also like to emphasise the fact that unfair discrimination occurs when there is dramatic differences between the wages of two individuals doing essentially the same work. Here we support the SACC and CLC’s Women and Human Rights Project in this regard.

3. Black Women as a separate category:
Although there has been significant increases of women in the workplace, black women are generally located in the service sector with low incomes. Black women have been oppressed as the result of gender oppression, racial oppression and class - they are oppressed as black people, as workers and as women. In the workplace, this oppression translates into discrimination in relation to wages, job opportunities, promotion, education and training which thus results in economic and social disempowerment.

We are concerned that the Bill does not mention "black women" as a special category of people disadvantaged by unfair discrimination. Employers are therefore under no obligation to employ black women, and black women could slip through the cracks if a "white woman" or "black man" is employed to fill the necessary requirements.

As mentioned by the Alliance, mechanisms should be put in place to make certain that people who fall into two or more categories only fill one position. Thus a black, disabled woman, either fills the position of a disabled person, a woman or a black person, thus leaving employment opportunities for others referred to in the Bill.

4. Inherent requirement for the job:
In Section 5 of the Bill, it is stated that it is not unfair discrimination to

"....distinguish, exclude or prefer any person on the basis of an inherent requirement of a job"

We feel that this qualification allows for abuse and will be used in many defences, unless the concept is expressly defined.

We also support the inclusion of "undue hardship" into the notion of "inherent requirement of a job".

Thus a person may not be found incapable of satisfying the essential duties or requirements of the job unless the needs of that person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding and health and safety requirements.

5. 50 people or less?
Firstly, we would like to know where the number 50 comes from? Secondly, if one takes international trends into consideration, the trend is to contract out and create smaller workplaces. This is a definite loop-hole in the legislation as companies could contract out, but keep overall control. We urge the Committee to correct this loop-hole in the legislation, as this is already common practice in South Africa.

6. Composition of the Employment Equity Commission:
Referring to section 28(1)(d), the Project supports the DPSA’s proposal that the Bill makes provision for the representation of people with different disabilities within the proposed Commission. We further would also like to make recommendations that at least three black women should sit on the Commission.

22 July 1998