Is Employment Equity Act constitutional?

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The Western Cape Government is seeking legal opinion on the
constitutionality of what it believes to be racially coercive Employment Equity
Act
draft regulations.


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The Western Cape Government has noted with concern the recently published
Draft Employment Equity Regulations, 2014 by the National Minister of Labour,
Mildred Oliphant, and has sought legal opinion on their constitutionality.
Recent amendments to the Employment Equity Act have empowered the
National Minister to issue regulations that "must' be taken into account when
determining whether a designated employer is implementing employment equity
in compliance with the Act.
The regulations may also specify the circumstances under which an
employer?s compliance should be determined with reference to the demographic
profile of either the national economically active population or the regional
economically active population.
Section D of the draft regulations state that:
? A designated employer employing 150 or more employees should use the
national economically active population to determine equity targets for the upper
three levels (top and senior management and the professionally qualified) of its
workforce while employers should use an average of the national and regional
economically active population for the lower levels (skilled technical, semi-skilled
and unskilled).
? A designated employer with 149 employees or fewer should use the
national economically active population for the upper two levels of the workforce
(top and senior management). In the professionally qualified, skilled technical
and unskilled occupation levels, regional demographics should be used.

If these regulations are implemented, they would have a very profound
impact on employment in those provinces where provincial demographics are
very different from the national figures.
It would mean that Coloureds, the majority population group in this
province, would be denied employment and promotion opportunities. This would
have a very profound impact on the provincial government, as well as other
spheres of government and all enterprises.

We have therefore requested a legal opinion on whether sections of the
Employment Equity Act and the Draft Employment Equity Regulations are lawful
and constitutional.

Once we have received this legal opinion, we will announce further steps
that we plan to take on this serious matter.


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