Over the last few years virtually every South African has been involved at some time or another, in a discussion of the rights and wrongs, merits and disadvantages of affirmative action or our employment equity legislation. Very often these are public conversations pursued in the media, and how often do the participants seem to be talking past each other?
One reason for this is the lack of clarity of terminology used. Many believe that this is a uniquely South African issue - not so says Prof Harish Jain. (Donald Gordon Visiting Professor at the Graduate School of Business, UCT and Professor Emeritus of Human Resources and Labor Relations at the MGD School of Business at McMaster University, Canada.) Prof Jain, who was hosted by the UCT Institute of Development and Labour Law, presented an international comparison on approaches to such legislation.
His presentation was based upon a publication: Employment Equity and Affirmative Action: An international comparison, which he has co-authored with Peter J Sloane and Frank Horwitz. Published by ME Sharpe. Clarification of terminology is vital: affirmative action essentially involves the monitoring of numbers achieved in specified time-periods.
In comparison, employment equity is much broader and involves the culture and climate at the workplace, the policies and procedures adopted in areas such as: recruitment and appointments, promotion and training. Legislation against discrimination exists in various forms not only in South Africa, but in a range of other countries, some of which are: Australia, Canada, USA, Belgium, Malaysia, Britain, Northern Ireland and India.
Diversity management is also associated with such legislation and is an intervention which employers find improves their business operations; it is not legislated and Prof Jain suggests that it continues as long as it makes business sense. From an international comparison, it is apparent that the introduction of legislation - and the interpretation of its application in case law - has been developing since the early 1970's.
South Africa's Employment Equity Act was largely influenced by the Canadian conceptual and legal framework. In the countries he compared, there are a range of legislative responses to the problem confronted, which is in essence, the prevention of discrimination against specified groups.
These groups may be minority groups, but in some cases, such as in Malaysia and South Africa, are majority groups. He suggests that the Malaysian comparison is particularly relevant to South Africa. In South Africa, the latest report of the Employment Equity Commission demonstrates that while there has been progress since 2000 in the advancement of black men, there remains a firm glass ceiling restraining women, and the disabled have essentially been excluded.
Prof Jain suggests that the recent successful litigation by a man, who had been excluded from functioning as a fireman on the basis of his insulin dependence, is an indication of how important it is for employers to ensure that their recruitment specifications are based upon the inherent requirements of the job.
While South African recruitment has not generally been characterised by the "height' and "weight' specifications, the use of qualifications, which tends to disproportionately exclude the previously disadvantaged groups, still exists. Prof Jain emphasised the importance of employers being able to demonstrate the direct relevance of a qualification as a requirement to perform the job.
In response to questions, the requirement for training and development not only of employers who are required to comply, but also the trade unions, the shop stewards, and officials such as the department of labour inspectors. The trade unions, focused on "bread and butter issues' have not always seen the direct relevance of actively participating in consultation on these issues.
Given our national drive to reduce poverty and unemployment, to remove discrimination, uplift the youth and the rural poor, and achieve broad-based black economic empowerment, Prof Jain's presentation is timely, and for those working in this difficult, often emotive area, the international comparisons and contextualisation are both informative and re-assuring.
