What is affirmative action?
Affirmative action is a mechanism or measure provided for in the Employment Equity Act No. 55 of 1998 (“the Act”) that aims to “ensure that suitably qualified people from designated groups have equal employment opportunities and are equitably represented in all occupational categories and levels on the workforce of a designated employer.” The main sentiment of this measure is equality and representation of qualified designated groups, which is defined by the act as meaning “black people (which is inclusive of black, coloured and Indian people), women and people with disabilities”, being groups who have historically been underrepresented in the workforce.
Who must implement affirmative action in the workplace and how do they do it?
In terms of the Act, “designated employers” have the duty to implement affirmative action measures in the form of plans. A designated employer is defined by the Act as any employer who:
- employs 50 or more employees; or
- any employer who employs fewer than 50 employees but has an annual turnover that is equal to or above the applicable annual turnover of a small business in terms of Schedule 4 of the Act;
- or a municipality; or
- an organ of State (excluding the local sphere of government, the National Defence Force, the National Intelligence Agency or the South African Secrets Service); or
- any employer who is subject to a collective agreement as referred to in sections 23 and 31 of the Labour Relations Act 66 of 1995.
The designated employer implements affirmative action by creating an affirmative plan that creates opportunities for designated groups. As set out in sections 15(2) and 15(3) of the Act, the plan or policy must include measures that:
- identifies and eliminates barriers (such as unfair discrimination) against designated persons; and
- are designed to further diversity in the workplace based on equality, dignity and respect; and
- make reasonable accommodations for designated groups so that they enjoy equal opportunities and representation in the workplace; and
- ensure equal representation of suitably qualified persons from designated groups in all occupational categories and levels (including preferential treatment, and numerical goals, but exclusive of quotas); and
- retain and develop people from designated groups and implement appropriate training measures for skill development(including preferential treatment, and numerical goals, but exclusive of quotas);
It is important to read the above in line with section 6(2) of the Act which states that it is not unfair discrimination to take affirmative action measures which are consistent with the Act.
To be consistent with the Act, the designated employer must conduct a consultation with its employees about conducting an analysis and the implementation of the Act as set out in section 16 of the Act; thereafter the designated employer must conduct an analysis as set out in Section 19 of the Act; thereafter prepare an employment equity plan in line with Section 20 of the Act. Once that is done, the designated employer must annually report to the Director-General on the progress made as set out in section 21 of the Act.
If an employer is not a designated employer, it can voluntarily comply with the act by informing the Director-General of its intention to do so. If a designated employer fails to comply with the Act, the Department of Labour may impose a fine and/or prosecution.
Conclusion
Affirmative action is a mechanism of inclusivity, intended to make workspaces fair and to promote diversity and representation of qualified designated groups across all levels through equal opportunities to secure a job.
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