Employment Equity Act, 1998
The Employment Equity Act 1998 contains a number of provisions providing for affirmative action and protection against, amongst other things, unfair discrimination and sexual harassment (The Act does not provide a definition of "unfair discrimination" but see ss. 6(2) and (3) below.).
The Act applies to all employers (public and private sectors) and uses gender neutral language. Provisions of significance to women are set out below.
Section 5 provides for the elimination of unfair discrimination by requiring that "every employer must take steps to promote equal opportunity in the workplace by eliminating unfair discrimination in any employment policy or practice."
"Employment policy or practice" is widely defined in s. 1 and includes recruitment, job classification, remuneration, employment benefits and terms and conditions, promotion and dismissal.
Section 6 prohibits unfair discrimination:
"6(1) No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including ... gender, sex, pregnancy, marital status, family responsibility..."
Affirmative action is not unfair discrimination nor is to "distinguish, exclude or prefer any person on the basis of an inherent requirement of a job". Under s. 6(3), harassment of an employee for a ground set out above (ie: including sex) is specifically referred to as a form of unfair discrimination and is prohibited.
"Pregnancy" is defined in s. 1 as including "intended pregnancy, termination of pregnancy and any medical circumstances related to pregnancy". "Family responsibility" is defined as "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 or support". Under s. 9, an applicant for employment is included in the definition of "employee" for the purposes of s. 6.
Affirmative Action is provided for in Chapter III, but generally (see below) applies only to "designated employers". Designated employers are defined in s. 1 as including an employer who employs 50 or more employees or less than 50 but with an annual turnover set out in Schedule 4 of the Act. A collective agreement can also provide that a given employer is a designated employer for the purposes of the Act. The public sector is also covered except for security and defence services.
Note, however, that under s. 14 other employers may voluntarily agree to comply with Chapter III as if they were designated employers. Also the Labour Court may direct any employer, even if they do not fall within the definition of a "designated employer", to comply with Chapter III as if they were. In addition, schemes to avoid the application of Chapter III by taking a measure to avoid becoming a designated employer are prohibited by s. 61(2).
The incidence of atypical forms of work amongst women workers is an important issue. The application of s. 57 of the Act to temporary employment services is therefore significant. It deems the clients of the temporary employment service to be the employer if employment with the client is of indefinite duration or for a period of three months or longer. In addition, if a temporary employment service, on the express or implied instructions of a client, commits an act of unfair discrimination, both the temporary employment service and the client are jointly and severally liable.
The affirmative action provisions of the Act set out below only apply to "designated groups" which includes women. Under s. 13, "designated employers" must undertake the affirmative action measures set out in s. 15:
"15(1) Affirmative action measures are measures designed to ensure that suitably qualified people from designated groups have equal employment opportunities and are equitably represented in all occupational categories and levels in the workforce of a designated employer..."
Affirmative action measures are defined broadly and include measures to:
identify and eliminate employment barriers, including unfair discrimination;
create diversity in the workplace based on equal dignity and respect of all people; and
make "reasonable accommodation" for people from designated groups in order to ensure that they enjoy equal opportunities and are equitably represented in the workforce of a designated employer.
The measures can be designed to ensure the equitable representation of suitably qualified people from designated groups in all occupational categories and levels, and the training and development of people from designated groups. They can include preferential treatment and numerical goals, but can not include quotas. Also, nothing in s. 15 requires the establishment of absolute barriers to people who are not from designated groups.
Note that the phrase "reasonable accommodation" is defined in s. 1 as "any modification or adjustment to a job or to the working environment that will enable a person from a designated group to have access to or participate or advance in employment".
In formulating affirmative action measures, employers are required to undertake consultation and attempt to reach agreement with employees (see s. 16). In addition, under s. 19, employers must conduct an analysis of employment policies, practices, procedures and the working environment, which identifies employment barriers for people from designated groups, and determines the representation of people from designated groups in various occupational categories. Details of the requirements of the analysis are prescribed in the regulations.
"Employment equity plans" under s. 20 are an additional requirement of affirmative action. The main features of these plans are that they must:
achieve reasonable progress towards employment equity;
state the objectives to be achieved for each year, those managers responsible for the implementation of the plan, and the affirmative action measures to be implemented;
set numerical goals to achieve the equitable representation in occupational category and level in the workforce and a timetable within which this is to be achieved, and the strategies intended to achieve those goals;
set a timetable for each year of the plan for the achievement of goals and objectives other than numerical goals; and
set procedures to monitor and evaluate implementation of the plan and to resolve any dispute about the plan;
The plan may not cover a period shorter than one year or longer than five.
Disadvantages in training, education and experience are important in relation to equality in employment for women. Subsection 20(3) of the Act is significant in relation to women’s recruitment and promotion as it states that suitability for a job depends, amongst other things on, the "capacity to acquire, within a reasonable time, the ability to do the job." Also, in making decisions on job suitability an employer may not unfairly discriminate against a person solely on the grounds of lack of relevant experience.
Under s. 21, designated employers must submit reports at designated intervals (generally annually) to the Department of Labour. These reports are public documents and, under s. 22, are summarised in the employers annual financial report (or tabled in parliament in the case of government departments). There are also record keeping requirements imposed by s. 26 of the Act.
Under s. 24, designated employers must assign one or more senior managers to take responsibility for monitoring and implementing their employment equity plan. Under s. 25, all employers must display notices to inform employees about the provisions of the Act. In addition, employment equity plans, reports, compliance orders, arbitration awards and orders of the Labour Court concerning the Act must be made available employees.
Measures to overcome pay differentials and/or discrimination that will assist women are found in s. 27 of the Act which requires designated employers to report to the Employment Conditions Commission on the remuneration and benefits received in each occupational category and level. If income differentials are disproportionate, measures must be taken for their progressive reduction subject to guidelines by the Minister for Labour. These measures may include:
collective bargaining;
compliance with sectoral determinations made by the Minister under s. 51 of the Basic Conditions of Employment Act 1997 (no relevant determinations to date);
applying the norms and benchmarks set by the Employment Conditions Commission; and,
relevant measures contained in skills development legislation;
Chapter V provides for enforcement of the Act by labour inspectors (s. 35) through a system of undertakings to comply (s. 36) and compliance orders (s. 37) enforced by the Labour Court. Of particular interest are the guidelines to be used in assessing compliance with the Act found in s. 42 which include the following factors:
the extent to which suitably qualified people from and amongst the different designated groups are equitably represented within each occupational category;
progress made in implementing employment equity by other designated employers operating under comparable circumstances and within the same sector; and,
the reasonable efforts made by the employer to implement its employment equity plan and to eliminate employment barriers that adversely affect people from designated groups.
Section 51 of the Act prohibits discrimination against employees who exercise their rights under the Act. Chapter VI contains provisions which apply certain relevant parts of the Act to government contractors and establishes a compliance certificate system.
Also of significance to women is s. 60 of the Act which requires employers to consult with relevant parties and take the necessary steps to eliminate conduct by employees in contravention of this Act (for example in a sexual harassment case). The employer is liable for an employee’s actions if the employer fails to take these steps, or to prove that it did all that was reasonably practicable to ensure that the employee would not act in contravention of the Act.
It is also of interest to note that under s. 11 of that Act, employers bear the burden of proof of establishing that any discrimination is fair.
On December 1, 2000, the Code of Good Practices on key aspects of HIV/AIDS was added to the Employment Equity Act of 1998 because of the serious public health problems presented by HIV/AIDS with respect to human rights and employment. The Code does not however impose any legal obligation. The HIV/AIDS epidemic affects the workplace, with prolonged staff illness, absenteeism, and death impacting on productivity, employee benefits, occupational health and safety, production costs and workplace morale. In the workplace, unfair discrimination against people living with HIV and AIDS has been perpetuated through practices such as pre-employment HIV testing, dismissals for being HIV positive and the denial of employee benefits. The Code seeks to assist with the attainment of the broader goals of:
The Code’s policy principles are laid out in s. 3, and are primarily aimed at creating a non-discriminatory work environment for those with HIV or AIDS, including women, who are more vulnerable to infection in cultures and economic circumstances where they have little control over their lives. The principles are as follows:
For the purposes of the Code, “workplace” as defined in s. 4 includes the working environment of, amongst others, persons not necessarily in an employer-employee relationship, those working in the informal sector, and the self-employed.
The Code should be read in conjunction with the Constitution of South Africa, No. 108 of 1996, and all relevant legislation, including the Employment Equity Act, No. 55 of 1998, the Labour Relations Act, No. 66 of 1995, the Occupational Health and Safety Act, No. 85 of 1993, the Mine Health and Safety Act, No. 29 of 1996, the Compensation for Occupational Injuries and Diseases Act, No. 130 of 1993, the Basic Conditions of Employment Act, No. 75 of 1997, the Medical Schemes Act, No. 131 of 1998, and the Promotion of Equality and Prevention of Unfair Discrimination Act, No. 4 of 2000.