Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
20 July 2012

On Employment Equity and regional demograhics

I am happy to hear that Trade Union Solidarity filed papers at the Johannesburg Labour Court, asking that the entire SA Police Service (SAPS) Employment Equity plan be declared invalid. If the case goes ahead, it will provide welcome clarity on the legal limits of redress measures (also sometimes wrongly called affirmative action) – at least in the employment context. As I understand it, there are two important questions raised by the Solidarity case (as well as several other recent cases brought by the Trade Union).

First, to what extent can an employer rely on its Employment Equity targets to justify the non-appointment of “white” applicants in the absence of applications form a suitably qualified candidate from an “under-represented” target group in, what Solidarity calls, the “naked pursuit of demographic representation based on racial factors”. Second, to what extent can or should a redress plan take into account the regional differences in racial demographics. The SAPS Employment Equity plan for 2010 to 2014 is aimed at achieving racial representation across South Africa at all levels in the SAPS in the following manner: 79.35 percent for “africans”, 2.46 percent for “indians”, 8.85 percent for “coloureds” and 9.34 percent for “whites”. But is this fair in the Western Cape and KwaZulu/Natal where, in Jimmy Manyi’s now infamous phrase, there is an “overconcentration” of “coloureds” and “indians” respectively. (I place references to racial categories in inverted comma’s to signal the contingent nature of these categories – even as they are experienced as “real” by most people in South Africa.)

The case will centre on the appropriate interpretation of the Employment Equity Act in the light of the constitutional imposed demand for redress and the limits imposed by the Constitution on permissible redress measures.

On the first question several courts have, quite correctly in my view, interpreted the redress provisions of the Act as requiring both more and less from an employer than merely fulfilling equity targets. What most people criticising the principle of Employment Equity fails to understand is that redress measures are aimed at ensuring that suitably qualified employees from designated groups are provided with equal employment opportunity and that they are eventually equitably represented in all occupational categories and levels of the workforce. Breaking down existing barriers (created by the implicit prejudices in the system) that prevent this from happening is the ultimate goal of Employment Equity legislation.

The appointment of non-qualified candidates is neither required nor allowed by the Act (although this requirement of the Act is sometimes unlawfully ignored by some to further nepotistic or corrupt aims). But the notion of who is suitably qualified is itself highly contested as organisations and institution dominated by a specific racial, gender or other group would often – without even knowing it – judge the qualifications of candidates not purely on their actual skills and ability to do the job, but also on what to them would be invisible dominant racially and culturally influenced assumptions.

The candidate won’t fit in, the employer might think, because his English accent is too “african” or because she won’t be “one of the boys”, being a Muslim woman who does not drink alcohol and knows nothing about Stormers Rugby. Or the employer will worry about the fact that the candidate does not have a drivers licence (even when that is not an inherent requirement for the job), wrongly assuming that all “good” people had parents who taught them how to drive and bought them cars when they attended university and that the absence of a driver’s licence demonstrates a lack of initiative and drive.

A “black” candidate, which on paper might be the most talented, might be judged negatively for showing a lack of skill at answering the culturally specific questions posed to her by a panel of white men, while another, on paper weaker, “white” candidate – who grew up in the same cultural milieu and went to the same type of school as the majority of interviewing panellists – would be able to charm his interviewers because he would know the “right” cultural codes, the “right” way of dealing with the panellists who happen to look and behave just like his father. Often employers – without even realising it – are really looking for candidates who are “like them” (racially, culturally, temperamentally, intellectually, ideologically), somebody who shares their attitudes, connect to their background and behave like they do. If this happens, the employer runs the risk of judging those who are perceived to be different harshly not based on their experience and skills but on these invisible criteria that are never really verbalised.

That is why section 15 of the Employment Equity Act requires employers to identify and eliminate barriers with an adverse impact on designated groups and implement measures in the workplace to promote diversity (as in a diverse work environment the dominant cultural assumptions of the previously economically dominant group would become visible and may be challenged). There is also an obligation to make reasonable accommodation for people from designated groups. This means, for example, that when a person in a wheelchair applies and is appointed to a big company, that company would have a duty to ensure that the employer has wheelchair access not only to her office but also the staff canteen and all the meeting rooms. The Act also places a positive duty on employers to take steps to try and retain, develop and train employees of designated groups who might not have enjoyed all the educational advantages and benefits that are associated with a privileged childhood or a childhood lived as part of an economically and culturally dominant group.

The Act does not preclude the use of preferential treatment and the setting of numerical goals by an employer to ensure equitable representation in the workplace. Merely setting targets and appointing suitably qualified employees from designated groups to try and reach those targets are not going to be declared unlawful by our courts. But it is clear that the setting of rigid quotas, which will lead to a situation in which suitable qualified candidates from non-designated groups become unappointable until such time as those quotas have been reached, are not in line with the Act, nor with the Constitutional Court’s jurisprudence dealing with the limits of redress measures. Where a redress plan has the practical effect of placing an absolute barrier on the employment and promotion prospects of candidates from non-designated groups, it would be unlawful.

Often the problem with a specific Employment Equity policy is not the actual redress plan of the employer, but the way in which it is being implemented. (In debates about affirmative action, those who oppose Employment Equity measures often wrongly conflate the unassailable principle that there is an ethical and constitutional need to implement redress measures, on the one hand, with the unlawful and corrupt implementation of redress measures, on the other.) There would be nothing wrong with the SAPS setting employment equity targets and vigorously setting out to achieve those targets by favouring the appointment of suitably qualified “black” candidates. But where this leads to a refusal of the SAPS to appoint or promote any “white” candidates – even where no suitably qualified “black” candidate has applied for the position or the promotion – then the implementation of the redress plan would be open to challenge.

On the second question regarding the use of regional rather than national racial demographics, the answer is perhaps more complex than one would have thought. In dealing generally with redress measures the Constitutional Court has stated that questions about redress need to be evaluated in the particular social economic and legal context, and that it is a situation sensitive enquiry. The context in which the Employment Equity Act Regulations should be read is one in which the lingering effects of past apartheid distinctions based on “african”, “indian” and “coloured” race categories are still felt in our society.

At present, section 42 of the Employment Equity Act states that in determining whether a designated employer is implementing Employment Equity in compliance with this Act, the Director-General of Labour must take into account all other factors mentioned in section 42, which includes the “demographic profile of the national and regional economically active population” and the “pool of suitably qualified people from designated groups from which the employer may reasonably be expected to promote or appoint employees”.

It must be noted that this section does not seem to impose a direct legal duty on an employer to take into account both national and provincial demographics (or to look at the pool of suitably qualified employees available in the region) when devising an Employment Equity Plan. This suggests that there is nothing in the Employment Equity Act that prevents the SAPS from using national instead of provincial racial demographics when devising and implementing an Employment Equity plan.

However, the Department of Labour must, inter alia, look at provincial racial demographics when it evaluates the Employment Equity Plan of the Department. This suggests that the Employment Equity Act may perhaps be interpreted to imply that – in certain contexts – the achievement of Employment Equity in a workplace can only be achieved if the regional and not the national demographics are taken into account. This interpretation is somewhat strained as section 42 of the Act requires the Department of Labour to take into account both national and regional racial demographics and it is far from clear whether these provisions could be read to place a legal duty on the SAPS to use regional and not national racial demographics in its Employment Equity Plan. Of course, if the Employment Equity Act is interpreted to allow the use of national demographics when it devises and implements an Employment Equity plan, the constitutionality of the Act could well be challenged successfully.

But even then, I would suspect that it would not be feasible to impose an absolute obligation on employers always to take into account the regional demographics when it designs and implements an Employment Equity plan. The nature of the employer might require the use of national – instead of regional – demographics. For example, if the national Parliament devised an Employment Equity plan, it would make sense (and would be more fair) to use national racial demographics, as there is only one national Parliament in South Africa – even though it is situated in the Western Cape where the racial demographics differ from the national average. To hold otherwise would be unfair to “african” employees wishing to work in our Parliament.

The situation might be different for the certain parts of the SAPS, as there are nine Provincial Police Departments and hundreds of Police Stations and it would be possible to take into account regional demographics when filling posts or promoting individuals in these Departments or Stations. But there is only one SAPS Head Office in Pretoria, which – I would suggest – would require the use of national demographics when designing and implementing an employment equity plan for SAPS Head Office.

This is because – as the Constitutional Court has affirmed in the Van Heerden case – redress is about achieving a balance between the long term goal of addressing the effects of past and on-going racials and other forms of discrimination, while also in the short term treating everyone as fairly as possible. As far as the SAPS plan effects “coloured” SAPS officers working the Western Cape, those “coloured” personnel could, of course, always apply for jobs elsewhere (where there is not – in the offensive words of Jimmy Manyi – an “oversupply of coloureds”). But – with the exception of Head Office posts, this requirement would place “coloured” members of the SAPS in the Western Cape in a very difficult position. If their roots are in the Western Cape, if their families live and work here, and if they speak predominantly Afrikaans, one of the dominant languages in the region, such employees may in effect be forced to choose either to accept that they will never be promoted or to accept that they will have to uproot themselves and go and live elsewhere. This may force many of them out of the service of the SAPS altogether.

This interpretation of the Employment Equity Act would be in line with the Constitutional Court’s jurisprudence on corrective measures as developed in the Van Heerden case, in which Deputy Chief Justice Moseneke stated that it was not constitutionally permitted to impose corrective measures on a group if those measures constituted “an abuse of power or impose such substantial and undue harm on those excluded from its benefits that our long-term constitutional goal” of achieving equality in a diverse society would be threatened. The SAPSs policy may therefore be declared unlawful and not in line with the carefully interpreted provisions of the Employment Equity Act because it is too blunt and fails to take account of the lived realities of South Africans in a nuanced manner.

If the court found that the Act could not be interpreted in this way, I suspect it would have to declare unconstitutional the provisions in the Act which could be interpreted as allowing an employer always to ignore regional racial demographics when it devised and implement an Employment Equity plan. This would be because such a provision (interpreted to allow for national demographics to be used exclusively when formulating Employment Equity Plans) would not meet the requirements for a valid corrective measures programme developed in the Van Heerden case.

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