Implemention of the Employment Equity Act

On 9th August 1999, Chapter Two of the Employment Equity Act and related sections came into effect. Therefore we need to look at:

• What is different since 9th August 1999
• New rights and obligations
• What the rest of the Act is saying
• The rights and obligations re: the rest of the Act

Legacy of discrimination

• Discrimination on the basis of race, sex, colour, disability, sexual orientation, etc
• Employment policies have excluded certain people from benefits because they are married, black, Muslim or old
• Medical or psychological tests can exclude certain people when there is no good reason to conduct such tests

And there are new forms of discrimination...

• There is increasing evidence that employers do not employ or train HIV positive people
• There are no grounds to discriminate against HIV positive people who can lead normal lives for significant periods of time
• They constituent a significant proportion of working people:
• by 2005, 20% of people could be HIV positive
• already about 8% of Gauteng employees are HIV positive.

How do we address these problems? Removing discriminatory laws alone not enough. Can we leave the correction of inefficiencies to the market?

Purpose of the Act

The purpose of the Act is to achieve equity in the workplace by:

• promoting equal opportunity and fair treatment in employment through the elimination of unfair discrimination
• implementing affirmative action measures to redress the disadvantages in employment.

Who is affected?

• All employers will have to abide by the provisions of Chapter Two
• All employees, including job applicants, will have a right to claim unfair discrimination
• Members of the SANDF, NIA and SAS are excluded at present.

Differential application of the statute in respect of the church

• The Act provides for the customised application
• This is made possible by its provision for a specific workplace analysis and consultation with stakeholder
• It therefore accommodates differences
• Moral or theological mandate for the church
• The Act seeks to redress imbalances as a result of past discriminatory policies
• The Church in SA has been implicated in these practices
• Therefore it is a moral duty for the Church to redress the imbalances that resulted within its structures

Accommodation factors that militate against compliance

• The Act accommodates the discrimination that comes about as a result of the inherent requirements of the job
• This therefore protects organisations/ churches in as far as practices that are cannot be opened up to everybody
• How to ensure obligations do not conflict with theological beliefs
• The Act provides for the establishment of the Commission for Employment Equity
• The commission is tasked with conducting further research hearings where necessary
• Therefore the Church is welcome to make use of these avenues

Chapter 2: Prohibition of discrimination

The Act says:

"No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds"

First, what are the grounds of discrimination?

• Race
• Gender
• Sex
• Pregnancy
• Marital status
• Family responsibility
• Ethnic or social origin
• Colour
• Sexual orientation
• Age
• Disability
• Religion
• HIV status
• Conscience
• Belief
• Political opinion
• Culture
• Language
• Birth

Some of these grounds are defined in the Act:

People with disabilities means

"people who have a long term or recurring physical or mental impairment which substantially limits their prospects of enter into, or advancement, in employment".

Family responsibility means:

"the responsibility of employees in relation to their spouse or partner, their dependent children or other members of their immediate family who need their care and support"

Second, what is an employment policy or practice?

The Act says this includes:

• recruitment procedures, advertising and selection criteria
• appointments and the appointment process
• job classification and grading
• remuneration, employment benefits and terms and conditions of employment
• job assignments
• the working environment and facilities
• training and development
• performance evaluation systems
• promotion
• transfer
• demotion
• disciplinary measures other than dismissal
• dismissal

Third, what is the difference between direct and indirect discrimination?

Direct discrimination is where there is unfavourable or differential treatment on the basis of one or more grounds in the Act

Indirect discrimination is where a rule has an adverse impact on certain individuals or groups of people.

An example of direct discrimination:

• A disabled person is refused a job even though she was more qualified than the person who got the job

Some examples of indirect discrimination:

• An unwritten rule that requires you to have been to Wits University to become a manager.
• A school policy that all teachers have to be able to give lessons on the Bible.

Fourth, when is discrimination fair?

The Act says:

"It is not unfair discrimination to take affirmative action measures consistent with the purpose of this Act; or distinguish, exclude or prefer any person on the basis of an inherent requirement of a job."

Chapter Two goes on to include provisions on:

• Harassment
• Medical testing
• HIV testing
• Psychological testing and other similar assessments

Harassment

The Act says that harassment of an employee is a form of unfair discrimination and is prohibited on any one, or a combination of grounds of unfair discrimination.

Some examples of possible harassment:

• Using terms like boy, kaffir, coolie or fag
• Asking to stroke a pregnant woman's stomach (if request is unwelcome)
• Asking a Jewish person to remove his yarmulke
• Writing homosexual jokes in the toilet
• Making fun of someone's accent.
• Sexual harassment

[Note: The above examples of harassment depend on the context and frequency]

Medical testing

The Act says:

"Medical testing is prohibited unless legislation permits or requires the testing;or it is justifiable in the light of medical facts, employment conditions, social policy, the fair distribution of employee benefits or the inherent requirements of a job."

When can medical testing occur?

• If legislation permits or requires it; for example:
• Lead regulations of OHSA says employees working with lead must be regularly tested
• General Administrative Regulations of OHSA say employers shall not permit a person under the influence of intoxicating liquor or drug to enter or remain on workplace
• Diving regulations say divers must get a medical examination once a year.
• If medical facts justifies it; for example:
• In the case of a medical condition is easily transmitted in the workplace.
• If employment conditions justifies it; for example:
• If a worker on a production line has TB (as opposed to a security guard)
• If social policy justifies it; for example:
• Social norms would condone testing for drugs but not for general pregnancy.
• If fair distribution of employee benefits justifies it; for example:
• To obtain disability cover or membership of a retirement fund.
• If it is an inherent requirement of the job; for example
• A vision test for a driver

HIV testing

What the Act says:

"Testing of an employee to determine that employees' HIV status is prohibited unless such testing is determined to be justifiable by the Labour Court in terms of Section 50 (4)."

Section 50 (4) says that if the Labour Court declares that medical or HIV testing is justifiable, the court may make an appropriate order and could include conditions relating to:

• provision of counselling
• maintenance of confidentiality
• period during which the testing applies
• categories of employees to whom the order applies

Psychological testing

What the Act says:

"Psychological testing and other similar assessments of an employee are prohibited unless the test or assessment being used

• has been scientifically shown to be valid and reliable;
• can be applied fairly to all employees; and
• is not biased against any employee or group."

Why a provision on psychological testing?

• Psychological tests are one of a number of selection tools used by employers
• No test is completely objective
• In the South African context, tests can often be culturally biased against previously disadvantaged people.
• As such they are a form of indirect discrimination

Chapter 3: Affirmative Action Chapter

Who is affected?

• Designated groups
• Black people (African, Coloured, Indian)
• Women
• People with disabilities
• Designated employers
• Employers with 50 or more employees
• Firms with turnover equal to or above the annual small business turnover (Schedule 4)
• Municipalities
• Organs of state designated by President
• Employers bound by collective bargaining agreement

What are Employer duties?

• Consult employees
• Conduct analysis and prepare profile
• Prepare EE plan
• Implement EE plan
• Report to Department:
• Employers with more than 150 employees - annually
• Employers with less than 150 employees - every 2 years

Affirmative action measures

• Identify and remove barriers
• Further diversity
• Make reasonable accommodation
• Measures to ensure equitable representation of suitably qualified people
• Measures to retain, train and develop skills

Employment Equity Plans

• Objectives
• Removal of barriers
• Affirmative Action measures
• Numerical goals
• Timetable
• Monitoring procedures
• Internal disputes
• People responsible

Remedies in the face of discrimination

Resolving disputes

• Any party can declare a dispute and refer it to CCMA within six months
• CCMA must attempt to resolve by conciliation
• If conciliation fails, any party can refer the dispute to the Labour Court for adjudication
• Or, if both parties agree, the dispute can be referred to arbitration

Role of Labour Court

Section 50 (2) of the Act says that if the Labour Court decides that an employee has been unfairly discriminated against, it may make an appropriate order that is just and equitable in the circumstances including:

• payment of compensation by employer
• payment of damages
• an order directing employer to take steps to prevent the same or similar experience
• an order directing an employer to become a designated employer

Who has the burden of proof?

• Section 11 of the Act says that the employer against whom the allegation is made must establish that the relevant act or action was fair.
• This is called a 'reverse burden' since usually the person who alleges must prove.
• The employee must still set out the facts or grounds on which the claim is made

What happens if one employee discriminates against another?

Section 60 of the Act makes the employer liable for acts committed by another employee if:

• the employee, while at work, committed the act
• the conduct was brought to attention of employer
• if employer failed to take necessary steps that were reasonably practical to eliminate the harassment

What happens if an employee is victimised?

• Section 51 of the Act protects employees from being victimised because they used the rights granted to them in the Act
• If this occurs then the employee can declare a dispute and refer the matter to the CCMA.
• If CCMA does not resolve through conciliation, the dispute will be arbitrated

Enforcement

• Labour inspectors
• Compliance orders re Affirmative Action
• Labour court order
• Director General
• request information and documents
• review employer's compliance with EE obligations and Act
• approve EE plan or make recommendation
• refer non-compliance to Labour court

Powers of Labour court

• Fines
• Damages for unfair discrimination
• Compliance order
• Approve medical testing
• Approve HIV testing
• Any other order to give effect to Act

Employers' responsibilities

Section 5 says that:

"Every employer must take steps to promote equal opportunities in the workplace by eliminating unfair discrimination in any employment policy or practice."

What does this mean for employers? [Note: this is not a comprehensive list]

• Audit/review of employment policies and practices
• Information to managers and employees
• Diversity/sensitivity and similar training
• Establishment of effective and appropriate internal dispute resolution mechanisms.

Responsibilities of employees and trade unions

• Inform fellow employees about their rights
• Understand the law
• Use internal dispute resolution mechanisms before going to CCMA
• Do not refer frivolous or trivial disputes to CCMA.

Responsibilities of non-governmental organisations

• Department welcomes the contribution of NGOs
• Help to inform and educate employers and employees

Implementation dates

The Act is being promulgated on different dates. Phased implementation should enable employers, employees and the Department to build capacity to effectively implement the Act.