One of the many challenges that South Africa faces today, is arguably the establishment of fairness in all facets of everyday life. Even more challenging is to reach the state where every citizen experiences a sense of “redress", and where society as a whole, has freely adopted a culture of equality. It is self-evident that the necessity for fairness and equality is apparent and though it is easy to announce, it is quite difficult to actualize. This is mostly attributed to historical discrepancies, created by policies and practices, especially in employment.
These discrepancies, by themselves, created vast and lasting Barriers towards achieving the vision of the Employment Equity legislation. Merely repealing these biased policies and prohibiting the associated practices would not remedy nor eliminate the unfair discrimination it created. To compound the situation even further, these Barriers, though similar in nature, could differ immensely from employer to employer, as well as from industry to industry. To better understand what a Barrier towards Employment Equity is then, one needs to examine two key principles of the Employment Equity Act 55 of 1998 (as amended), namely the Purpose of the Act, as well as what the Act define as Unfair Discrimination.
Section 2 of The Act states the Purpose of The Act as; “… to achieve equity in the workplace by promoting equal opportunity and fair treatment in employment through the elimination of unfair discrimination.”
The Act further defines Unfair Discrimination as per Section 6 as; “No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including 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 or on any other arbitrary ground.” This is also referred to as “Listed Grounds” of Unfair Discrimination. Section 6 also notes that “Harassment of an employee is a form of unfair discrimination and is prohibited on any one…, as well as “A difference in terms and conditions of employment between employees of the same employer performing the same or substantially the same work or work of equal value that is directly or indirectly based on any one or more of the grounds listed in subsection (1), is unfair discrimination.”
A carefully planned and structured analysis of policies and practices is the only way to identify whether Barriers towards Employment Equity are present in the workplace. The analysis of policies and practices as well as other written documentation can be done through the collection of the information, listing what is applicable, and identifying whether any documentation reflects direct or indirect unfair discrimination or barriers, that is either directly or indirectly associated with any of the listed grounds as defined by the Act.
Additionally, barriers to employment that are not linked to listed grounds can also exist, and often have consequences as dire as those mentioned above. In the event that a practice is discriminatory, but not necessarily on one of the above listed grounds, is deemed to be discrimination on an Arbitrary Ground. Essentially – this refers to discriminatory practices that are not based on listed grounds or facts, but have far-reaching effects and are often difficult to prove or disprove in court- eg. basing the decision to hire or promote one candidate above another based on their physical appearance and attributes, whereas these don’t have an impact on performance of the job.
The analysis of practices are generally the informal or unwritten rules that prevail in the workplace and can be analyzed through a combination of employee attitudinal surveys, individual interviews and focus groups to establish perceptions of their impact on achieving employment equity. The Employment Equity Act’s regulations offer insights into the business practices you should be investigating for unfair discriminatory practices, including facets like training and development, retention of designated groups, advertising of positions and numerous other factors that employers typically have risks associated with.
It is advisable that you utilize either your Transformation Steering Committee, Culture Committee, Employment Equity Committee or any other established body that has a substantial input into your company’s culture when conducting this analysis, as barriers are often latent and not readily apparent to the casual observer.
Take care when determining what the barriers to achieving equitable representation across every level of your organization are, and how you choose to define them. The lack of barriers, as well as the lack of attempts to rectify same, are directly associated to penalties and fines by the Department of Labour, but often have a profound effect on company culture- ranging from demoralizing discussions at the water-cooler to disengaged staff.
Although the barriers identified need to be listed on the relevant Employment Equity documentation; their timelines for resolution and proposed solutions (Affirmative Action Measures) need to be identified and acted upon as well. Barriers that have no proposed solutions or activities are seen as counterproductive to the purpose of having an Employment Equity plan, as is the complete disregard of barriers despite not reaching numerical goals and targets.
In the event that you’re unclear as to what constitutes barriers to employment equity and/ or how to go about addressing them; break it down into simpler questions, such as “Does this practice impact one specific race and / or gender combination’s performance/ morale/ employment opportunities?” and “Would I be ashamed of this practice should it be broadcasted in my company newsletter?” If the answer is affirmative, taking any action is better than taking no action at all.
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