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Affirmative action seen through a court's eyes

Affirmative action seen through a court's eyes

By St Elmo Wilken who can be contacted at www.tabacks.com

Discrimination and affirmative action measures are highly charged and emotional issues in South Africa's jobs market.

The Constitution, the Employment Equity Act and the Promotion of Equality and Prohibition of Unfair Discrimination Act all contain anti-discrimination measures designed to create equality.

Affirmative action measures do contain an element of reverse discrimination to ensure representivity and further the aim of equality. However, left unchecked, these measures would undermine the concept of equality.

Certain recent court rulings have provided further guidelines on implementing affirmative action measures.

>> Affirmative action and efficiency

Recently, a white candidate who scored the highest in an interview process brought a case against his employer after the most suitable black candidate got the promotion.

The employer contended that the appointment furthered the organisation's representivity in terms of its employment equity plan.

The applicant argued there was no proof that the black employee, as an individual, was previously disadvantaged.

The court made two important rulings.

First, it highlighted the need to balance efficiency and representivity, which should be seen as linked and not competing aims. Equality is not advanced when a person is appointed to a position of responsibility despite being wholly or less than suitably qualified or incapable. Equality is also not advanced when affirmative action measures come into play only when candidates are equal in terms of qualifications and merits, and one is a previously disadvantaged individual and the other is not.

The second important ruling was that affirmative action measures are there to advance a "group or category of persons, of which a particular individual happens to be a member", and not just a particular individual.

As a result, the particular privileges or achievements of a previously disadvantaged individual should not be taken into account when affirmative action measures are applied.

>> Compliance with an employment equity plan

Compliance by an employer with its own employment equity plan received consideration in a recent labour court case.

A "non-designated" post - a post open to all employees - was awarded to a black employee.

The employer contended that the appointment was made to advance representivity in terms of its employment equity plan.

An unsuccessful white applicant lodged a case against the employer. He maintained that applying representivity as a criterion for a non-designated position meant that non-designated applicants would be excluded from being considered for both non-designated and designated positions.

The court found that the employer had not been fair or correct when it applied the criteria in the employment equity plan.

This amounted to discrimination. In other words, haphazard, random or overhasty measures to enhance representivity are considered to be discriminatory.

>> Affirmative action measures: designated groups only

In a recent decision by the Commission for Conciliation, Mediation and Arbitration, an applicant alleged he should have received preference for a position due to being Muslim.

All the successful candidates were Christian.

The CCMA ruled that affirmative action measures are aimed only at addressing the representivity of previously disadvantaged individuals and would be discriminatory if used to advance other groups.

>> Affirmative action as a sword and shield

The labour court recently considered whether affirmative action can be employed both as a shield: to defend an employer against claims that it discriminated unfairly against an employee; and as a sword: as a means to eliminate discrimination in the workplace.

The court held that in appropriate circumstances employees could institute action against employers who fail to promote equality through affirmative action measures on the basis that it violates the right of a previously disadvantaged individual to be advanced.

Similarly, an employer may violate the rights of an employee from a non-designated group not to be discriminated against unfairly by preferring a previously disadvantaged individual who is not "suitably qualified" as described in the Employment Equity Act.

In October 1991, former President Nelson Mandela made a speech which has been a guide in the application of the affirmative action measures:

"We are not . . . asking for handouts for anyone, nor are we saying that just as a white skin was a passport to privileged past, so a black skin should be the basis for privilege in future.

"Nor . . . is it our aim to do away with qualifications . . . [T]he special measures that we envisage to overcome the legacy of past discrimination are not intended to ensure the advancement of unqualified persons, but to see to it that those who have been denied access to qualifications in the past can become qualified now, and those who have been qualified all along but overlooked because of past discrimination, are at last given their due . . . The first point to be made is that affirmative action must be rooted in principles of justice and equality."

When considering the recent judgments it is apparent that the principles, as expressed by Mandela, motivating the introduction of affirmation action measures, support the reason behind the rulings.


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Gary Watkins

Gary Watkins

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