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Front Page Features

The problem with affirmative action

19 March 2010
Gareth Stokes : gareth@fanews.co.za

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Gareth Stokes, FAnews Online Editor

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Affirmative action wasn’t ‘invented’ in South Africa. According to wikipedia.org the phrase was coined in the United States to refer to “policies that take race, ethnicity, physical disability or sex into consideration in an attempt to promote equal opportunity or increase ethnicity or other forms of diversity.” The policy could be applied to maximise diversity in all levels of society and to redress perceived disadvantages due to overt, institutional, or involuntary discrimination.

South Africa introduced affirmative action in the Employment Equity Act, 55 of 1998. The Act recognises “that as a result of apartheid and other discriminatory laws and practices, there are disparities in employment, occupation and income within the national labour market, and that those disparities create such pronounced advantages for certain categories of people that they cannot be redressed simply by repealing discriminatory laws.” We cannot fault the statement, except to observe that – all else being equal – the repeal of discriminatory laws would address labour market inequality over time.

Employment equity objectives

The Act was tabled to:

1. Promote the constitutional right of equality and the exercise of true democracy;

2. Eliminate unfair discrimination in employment;

3. Ensure the implementation of employment equity to redress the effects of discrimination;

4. Achieve a diverse workforce broadly representative of our people;

5. Promote economic development and efficiency in the workforce; and

6. Give effect to the obligations of the Republic as a member of the International Labour Organisation

An independent observer may conclude, after unpacking these objectives, that the Act contradicts itself. The Act eliminates unfair discrimination imposed on certain sectors of the national labour market by imposing similar constraints on another. The roughshod implementation of affirmative action policy defeats rather than promotes economic development and efficiency. Protections for minorities as espoused in Clause 15 (4) of the Act are largely ignored. The clause reads: “Subject to section 42, nothing in this section requires a designated employer to take any decision concerning employment policy or practice that would establish an absolute barrier to the prospective or continued employment or advancement of people who are not from designated groups.”

Breaking rather than building

The perverse application of the Act is demonstrated in a landmark affirmative action case heard by the Labour Court. Law firm Denys Reitz observes: “The Labour Court found that the South African Police Services’ failure to appoint Captain Barnard, a white female, in the position of Superintendent of the Complaints Investigation Unit, in circumstances where the SAPS failed to fill the position at all, constituted unfair discrimination.” The decision will hopefully force designated employers to take complaints from non-designated employees more seriously in future. Companies cannot apply blanket ‘no promotion’ policies, must at all times apply principles of fairness, and consider the circumstances of individuals who may be adversely affected by their employment equity plans.

Barnard’s case will resonate with thousands of non-designated employees at public service companies, or state-owned institutions. Denys Reitz reports that Captain Barnard was short-listed as the best candidate for the position on two occasions, but denied promotion on each occasion because she is white. The National Commissioner ignored the interview panel’s recommendation to appoint Barnard. “What was interesting was that not one of the other short-listed employees from designated groups was appointed either, leaving the position unfilled,” observes the law firm.

The Labour Court found that the fact Barnard was not appointed on account of her race constituted discrimination. In failing to appoint a suitable black candidate to the post the National Commissioner failed to implement its employment equity plan in a fair and appropriate manner! Denys Reitz comments: “Having decided not to implement the employment equity plan by appointing a recommended black candidate, it was unfair in the circumstances not to appoint Captain Barnard who, according to the interview panel, was the best candidate for the job and who, as a female, was in any event a member of a designated group in terms of the Employment Equity Act.”

More of the same

We believe the Labour Court ruling reinforces Clause 15 (4) mentioned earlier. It also suggests a more appropriate application of affirmative action policies. We always understood affirmative action to mean choosing the best possible candidate first, and if there were numerous similarly capable candidates, to favour candidates from the designated group. South Africa cannot afford to leave critical positions vacant because the suitable job applicant doesn’t tie in with a companies’ employment equity plan. The Labour Court ordered the SAPS to promote Captain Barnard to the position of Superintendent (retrospectively from 27 July 2006) and to pay her legal costs.

We’ll give Denys Reitz the last word: “If there is not a suitable designated candidate, a failure to appoint a suitable member from a non-designated group will constitute discrimination – unless the employer can show that it acted rationally and fairly.

Editor’s thoughts: We want a South Africa where we never have to tick a race block on a job application, and we want a South Africa where everyone competes for jobs on a ‘skills only’ ticket. Will we ever be able to abolish the so-called reverse discrimination enshrined in the legislation such as the Employment Equity Act? If you have strong views on the topic, please share them below, or send them to gareth@fanews.co.za

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