Affirmative Action and Its Aftermath

Unemployment and the difficult economic circumstances reflected and reinforced the long-entrenched, gaping inequities between black and white, rural and urban, and male and female South African workers. In

1998, the ANC-led government passed the Employment Equity Act (EEA), the first labor legislation to promote employment equity and affirmative action at the workplace. The objective of the legislation was to “achieve equity in the workplace by promoting equal opportunity and fair treatment in employment through the elimination of unfair discrimination and to implement affirmative action measures to redress the disadvantages in employment experienced by designated groups and to ensure equitable representation in all occupational categories and levels in the workforce.” 31 Under the act, “designated groups” consisted of blacks, colored, and Indians who were citizens of the country before April 1994 or who had been prohibited from becoming citizens due to apartheid laws and policies. The government recognized that affirmative action was needed to give people equal access to employment and the opportunity to fulfill their potential.

The act did not include quotas but allowed for preferential treatment in the recruitment, selection, and promotion of previously disadvantaged groups of people. It affected: (1) employers with 50 or more employees, (2) employers with 50 or fewer employees with a turnover rate higher than specified in the act, (3) municipalities, and (4) government organizations. It required them to eliminate policies or practices that “unfairly discriminate” (not defined in the act) based on race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, color, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, and birth or any other arbitrary ground.32

While affirmative action was successful in creating a public sector workforce that better represented the overall population, it also created challenges. During the apartheid years, white Afrikaners working in small municipalities dominated a large and thriving civil service. After the passage of affirmative action legislation, black staff members replaced many of those civil servants, but they were not trained to run systems or departments. Thus, the employment of members of underrepresented groups in the civil service grew over the years, but many new hires lacked the skill level necessary to effectively perform their jobs.33

That created high levels of dissatisfaction with the delivery of government services, resulting in social problems and civil unrest.34 Nadine Petersen, a professor of education at the University of Johannesburg in 2009, commented:

Our civil service is imploding. It’s about the ability to deliver. You’ve had people put in positions on a quick basis to get them jobs, to get the right people in with the right kind of faces into these positions, but they’re not able to deliver. Those are systemic issues.35

People disagreed as to when affirmative action should end. South Africans increasingly expressed frustration with the system as they felt black people were getting all the top jobs but were being pushed through with no merits.36 Other concerns were that affirmative action wasn’t helping the majority of black South Africans—just a small portion—and thus creating a culture of entitlement. South Africans who originally supported affirmative action but believed it had run its course were among those critics.37 Harold Herman, an emeritus professor of comparative and international education at the University of Western Cape, noted in 2009:

I know a lot about affirmative action. I’ve taught it, and I have supported it. But, I have spoken persistently at graduations and elsewhere about the culture of entitlement that is now happening in this country. It’s become a big problem. The people who are benefiting from it are the upper middle class and the bourgeoisie. The people who are not benefiting from it are the working class.38

The fear among many South Africans was that the continuation of affirmative action would lead to a complete culture of entitlement based on race. However, most people thought that affirmative action should be continued among black rural women, who remained underrepresented in all areas of employment.39 And while some government officials, academics, business leaders, and leaders of NGOs believed a number of the affirmative action policies would be dropped within the next five years, the Employment Equity Amendment Act of 2013, signed by the President Zuma in January 2014 and effective in August 2014, actually strengthened such policies. The following are key amendments to the act:

  • • Expands the meaning of “unfair discrimination” based on gender, race, religion, sexual orientation etc. by including the language “on any other arbitrary grounds.”
  • • Requires employer to demonstrate that differences in wages or employment conditions for the same work or work of equal value are based on fair criteria—for example, skill and experience.
  • • Limits the use of psychometric tests by employers to only those certified by the Health Professionals Council of South Africa or any organization authorized to certify the tests.
  • • Allows employees to take unresolved disputes to the Commission for Conciliation, Mediation, and Arbitration (CCMA) under these conditions: sexual harassment, when an employee earns less than the threshold prescribed under section 6(3) of the Basic Conditions of Employment Act, No. 75 of 1997 (BCEA), or when all parties involved in the dispute agree to go to arbitration. It also allows for repeal of an arbitrator’s decision to the Labor Court. Prior to the amendment all disputes were filed with the Labor Court.
  • • Includes a scenario where burden of proof rests with the employee. Prior to the amendment, regardless of dispute, the burden of proof was with the employer. Under the amendment, the burden of proof remains with the employer if the discrimination dispute is based on race, gender, sexual orientation, and the like. However, if the discrimination dispute is based on arbitrary grounds, the proof of burden is with the employee.
  • • Increases the maximum fines and allows the Minister of Labor to adjust fines to offset the effects of inflation without approval from the Minister of Justice.40
 
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