GENDER RESEARCH PROJECT
CENTRE FOR APPLIED LEGAL STUDIES
UNIVERSITY OF THE WITWATERSRAND
SUBMISSION ON THE EMPLOYMENT EQUITY BILL TO THE PORTFOLIO COMMITTEE ON LABOUR
The Gender Research Project (GRP) at the Centre for Applied Legal Studies (CALS) is a gender and human rights project involved in research and advocacy on a range of issues including equality, labour law and women's human rights.
The GRP welcomes the Employment Equity Bill. We believe that the achievement of equality in the workplace through the prohibition of discrimination and the implementation of positive measures is not only mandated by the Constitution, but is essential to economic growth and productivity.
While we agree with the principles of the Bill, we do have serious concerns about its present form, in particular that:
i. the concept of unfair discrimination is not defined in sufficient detail;
ii. the composition of the proposed Employment Equity Commission needs to be reworked for adequate representation of the interests of people from the designated groups; and
iii. there is a danger that the interests of black women, and in particular African women, will not be properly served by the Bill in it's current formulation. The concern here is that the problem of "intersectionality" which has arisen in foreign jurisdictions in applying discrimination legislation, is not anticipated or dealt with in the Bill. International experience has shown that discrete categorisations of "black" and "women" in discrimination legislation often operates to render black women invisible, and thus to disadvantage them. As they are the most historically and socially disadvantaged group in socio-economic terms in this country, and noting also that they comprise almost half of the population, it is imperative that the Bill be amended to prevent the possibility of their farther marginalisation. This will be elaborated upon below.
2. EQUALITY and UNFMR DISCRIMINATION
The Bill locates itself with the Constitutional framework of equality, unfair discrimination and positive measures. In doing this, it must ensure that its understanding of unfair discrimination and its relationship to positive measures complies with the constitutional interpretation of these.
It should also ensure that it provides clarity and certainty to employers and employees on the nature of their rights and obligations. As it stands, Chapter II of the Bill, which provides for prohibition of unfair discrimination, is sketchy and inadequate.
The issue of legislating unfair discrimination in other private spheres is currently being dealt with by the Equality Legislation Unit of the Human Rights Commission and Department of Justice. While there is already a developing jurisprudence in our labour law on unfair discrimination, we believe that a uniform anti-discrimination jurisprudence should be developed in all spheres, insofar as this is possible.
We wish to make the following submissions on specific aspects of Chapter II:
Defining and developing unfair discrimination and defences
2.1 The bill simply imports the constitutional definition of unfair discrimination with a few additions. This perpetuates the current uncertainty as to the precise meaning of concepts such as direct and indirect discrimination, the requirement of intention, the balancing that may be required under the concept "unfair", and the ambit of unfair discrimination. Potential litigants are given very little direction as to the nature of their rights. This problem is compounded by the fact that many disputes will be settled by the CCMA through conciliation. Conciliation is a private process which does not develop precedent. In the absence of clear legislative guidelines, it may be a long while before clear judicial guidelines are set.
2.2 The importance of defining direct and indirect discrimination cannot be underestimated. The importance of the concept of "indirect "or "disparate impact" discrimination as a tool for challenging systemic or institutionalised discrimination and ensuring the application of a substantive conception of equality has been proved in international jurisprudence.
2.3 The lack of legislative clarity will limit the understanding of the content of rights and obligations to the legal fraternity and render it difficult for employees to determine when discrimination has occurred and where they may have an actionable claim. International experience has shown that it is notoriously difficult for applicants to prove unfair discrimination, even in jurisdictions which have detailed definitions of discrimination, and of direct and indirect discrimination (for example, the British Sex Discrimination Act).
2.4 The Constitution has a limitation clause which allows the state an additional ground of justification where it discriminates unfairly. No such clause exists in the Bill. Any weighing up of the obligations of the employer against the rights of employee in the context of the workplace will have to take place within the meaning of unfair. Yet this is not defined in the act. Once more, potential litigants are prejudiced.
It is recommended that the definition of unfair discrimination be developed, and that the criteria that can be taken into account in determining whether discrimination is fair or unfair, or whether there is discrimination at all, be spelt out in great detail.
2.5 The exceptions to unfair discrimination of "inherent requirements of the job" ("commercial rationale" in the USA) has proven to be problematic in the context of gender equality. It allows courts to accept existing discriminatory practices based on gender stereotypes and not consider how they can be changed to promote equal opportunity for women. It can thus operate to undermine anti-discrimination legislation.
Furthermore, this exception is also unusual in the context of race. Most foreign
jurisdictions, including the USA, do not allow for such an exception on the basis of race.
Where such an exception is permitted, it is usually limited to specific circumstances such as where reasons of privacy and authenticity call for such an exception. The classic examples are that casting for the role of Othello in a play would require a black actor for reasons of authenticity, or that nursing of an intimate nature may require a person of a particular sex for reasons of privacy or decency.
It is thus recommended that the specific criteria that would constitute an exception on the basis of inherent requirements of the job be spelt out in the Bill, and that these be limited to reasons of privacy, decency and authenticity. Further, that the exception be defined to ensure that women are not excluded from sectors of the labour market that are seen as traditionally 'male' because of gender stereotypes.
2.6 There is no provision for locus standi. This is an area where potential litigants may want to join in class actions or rely on representative actions. Class actions are a particularly useful tool for marginalised groups which have limited access to justice and to whom the cost of litigation is prohibitive. We are thinking in particular of people in rural areas.
It is thus recommended that the Bill be amended to allow for class and representative actions.
2.7 Section 7 on medical testing is extremely invasive of the rights of persons with HIV/AIDS, in that it allows the employer to have too much discretion in determining when such testing is justified.
The increasing rate of HIV/Aids amongst women is of great concern, as the women most likely to be affected are often also the most socially and economically disadvantaged, usually black women. Domestic workers are particularly prone to violation of their rights in this area.
It is thus recommended that section 7 be strengthened by limiting the circumstances when such testing will be justified, and by limiting the discretion of the employer. We strongly endorse the contents of the submission of the Aids Law Project of the Centre for Applied Legal Studies of the University of the Witwatersrand.
General Recommendation on Chapter II - Unfair Discrimination:
It is recommended that:
1. the Portfolio Committee either instruct the Department of Labour that Chapter II be reviewed and developed in conjunction with the Human Rights Commission and Department of Justice Equality Legislation Unit drafting process, which process is still in progress, or that the Committee hold hearing on the Chapter and develop the section itself. The goal should be the development of a uniform anti-discrimination jurisprudence.
2. That the specific recommendations made above as well as the recommendation below on the intersectional experience of black women be taken into account in such reworking of Chapter II. In addition, we state that we agree in principle with the detailed arguments and submissions of the Community Law Centre and Human Rights Project of the University of the Western Cape, on Chapter II and gender discrimination, and recommend that these be taken into account.
3. THE INTERSECTIONAL EXPERIENCE OF BLACK WOMEN
In terms of Chapter III of the Bill (affirmative action), the designated groups are limited to black people, women and disabled people. The problem is that discrete categorisations of race and gender in anti-discrimination legislation may operate to disadvantage black women in two ways:-
3.1 Experience of affirmative action in the USA has shown that it is employer practice to hire or promote white women and black men, to appear to comply with affirmative action obligations. This is particularly problematic in South Africa because black women, and in particular African women, are historically the most marginalised and socio-economically disadvantaged, victims both of institutionalised racism and patriarchal sexism. Black women as a group suffer the highest level of pre-entry discrimination, that is, discrimination in the acquisition of skills and education prior to starting work, and cannot compete successfully. As a result, they are least likely to be considered for posts in higher levels or occupational categories in a company.
3.2 Decisions to exclude black women from the ambit of employment equity measures, or insufficient commitment to their advancement, are potentially difficult to challenge. Fortunately, the American experience, where black women were compelled to bring their claims within either the group 'black', or the group 'women' will not impact greatly on the South African jurisprudence, as our section on discrimination prohibits discrimination on one or more grounds" (section 6). However, the difficulty of ensuring adequate representation of black women in setting numerical goals remain a problem.
3.3 A related theoretical problem is that the legal test for whether discrimination exists is determined by comparison with someone in a similar position. This person, the norm or comparator, is usually 'white' or 'white male'. Most black women are unlikely to find a comparator against whom to prove that they are being treated less fairly, given that they are clustered in the lowest paying, most menial jobs. The women most likely to benefit from affirmative action measures are those most closely resembling in circumstance the dominant social group, that is, the position of white males.
3.4 Finally, the cumulative effect of race and gender is not merely additive, that is, black women's experience of discrimination is not merely an intensified version of the experience of white women or black men. It can be the combined effects of race and sex discrimination, and in addition, the unique experience of discrimination as black women.
We believe that it thus imperative at the very least that some safeguards be put in place in the Bill to protect the position of black women.
It is recommended that:
i. Black women be recognised as a separate group for the purposes of assessing equitable representation. We suggest that, particularly in section 15 (defining affirmative action) and section 41 (assessing compliance), the group "black women" be accommodated in the Bill.
ii. Wherever the term "people from a designated group" appears in the Bill, it is replaced by the term "people from one or more of the designated groups".
The latter step will go some way to protect not only black women, but people in the designated groups who have been victims of discrimination on more than one ground, for example, disabled women, black disabled men. The Bill must ensure that employers prioritise such people in terms of affirmative action measures.
In addition, for the purposes of anti-discrimination legislation, it is necessary to provide the courts with the basic tools to enable it to recognise the aggravated intersectional experience of discrimination on the basis of membership of more than one group, for example, gay women, black women, women with HIV/Aids.
4. EMPLOYMENT EQUITY COMMlSSION
The Bill provides for an Employment Equity Commission to advise the Minister on various matters and to research and report on any matter relating to the Bill. We have problems with the criteria for composition of this Commission.
Section 28(3) provides that "A party that nominates persons in terms of subsection (2) must have due regard to promoting the representivity of people from designated groups". The check which this section attempts to introduce is of limited effect for the reason that even if each party nominates candidates with due regard to representivity of designated groups, there is no ultimate check to ensure that the eight members as a group are balanced in terms of representivity.
It is thus recommended that the section be reworked to give the Minister final power to veto the ultimate representivity of the members as a group.
5.1 Pregnancy - Discrimination on the grounds of pregnancy commonly operates against women applicants for employment where they indicate that they intend at some stage to have a baby. Intended pregnancy should thus be included in the definition of pregnancy, to avoid this specie of discrimination. Prohibition of discrimination on the grounds of any termination of pregnancy should also be spelt out in the Bill, particularly as these definitions of discrimination will determine what constitutes discriminatory dismissals in terms of the 1996 Labour Relations Act.
It is recommended that the definition of pregnancy be amended to include not only "any medical circumstances related to pregnancy", but also intended pregnancy or any termination of pregnancy.
5.2 Family Responsibility - it is submitted that the definition of family responsibility is to narrow for two reasons. Firstly, that it is premised on the western notion of the nuclear family. It thus does not take into account the reality of the South African context, which is that most workers are African, and traditional African society operates on the notion of the 'extended family'. Secondly, the definition does not take into account the reality of an increase in informal common law relationships, nor does it deal with same-sex relationships.
It is recommended that the definition of family responsibility be amended to take account of the notion of the extended family, common law relationships, and same sex relationships. With regard to the latter, we endorse the submission of the National Coalition for Gay and Lesbian Equality.
6. THE ROLE OF INEQUALITY OUTSIDE OF THE LABOUR NIARKET.
The introduction to the Bill recognises the social and economic context of inequality in the workplace by citing factors outside of the labour market which impact on inequality within the labour market.
Factors, like disparities in ownership of productive assets, the unequal division of household labour and the geographic distribution of population groups under apartheid all contributed to the reinforcement of these inequalities. (At 6).
This recognition of extra labour market factors is not fully translated into the Bill itself. While we concede that the Bill is confined to regulating the labour market, we believe that a consideration of at least some of these "extra labour market" factors is critical to the successful implementation and adjudication of the Bill. For example, the determination of unfair discrimination" in relation to women workers will often require a consideration of women's gender roles in society; or the justification of positive measures for black people may require an understanding of the impact of apartheid on the acquisition of skills.
It is recommended that the Preamble include a short paragraph explicitly recognising the role of extra labour market factors. In addition to apartheid, specific mention should be made in the Preamble of the root of women's inequality in the workplace, namely, the sexual division of labour in the home, and specifically the extreme disadvantages faced by black and in particular African women.
The Gender Research Project is also a member of the Employment Equity Alliance, and supports the Alliance submissions on areas not covered in this paper. In addition, it endorses the submission with regard to disability of the Disabled People of South Africa.
Prepared by Shereen Mills and Dr Cathi Albertyn
Gender Research Project
Centre for Applied Legal Studies
UNIVERSITY OF THE WITWATERSRAND