IRR Legal to challenge employment race law in court
Employment Minister Nomakhosazana Meth has issued regulations that bring the most counterproductive racial labour law in the 21st century, the Employment Equity Act (EEA), into force.
IRR Legal will challenge the EEA in court to block its harmful impact on already scarce jobs, and vindicate the Bill of Rights.
The new EEA is a race law that allows Minister Meth to set racial requirements for private businesses that can be used to impose moratoria on hiring from a specific race in specific positions, as has already occurred in the public sector under the old EEA since the late 2000s. The new EEA changes the old system by bringing it to bear over most of the workforce, and by including the potential to bankrupt businesses through fines who fail to comply.
The new EEA is doomed to backfire in the private sector as it has already backfired in the public sector, where it was used explicitly to stop black and Indian women from being able to get jobs, as well as blocking every other existing race-gender pair in various instances.
The EEA, like all forms of BEE, is unpopular. A range of polls, including those commissioned by the IRR, indicate that most South Africans, including most black South Africans, would prefer a meritocratic alternative to BEE to be implemented.
The EEA is also inconsistent with South Africa’s Constitution, which only tolerates racial discrimination in limited circumstances. The EEA fails to meet all the constitutional tests because it is noxiously unfair; harms disadvantaged people; threatens to exacerbate inequality; and undermines race relations.
The EEA does not come in a vacuum. Rather, it comes after nearly two decades of missed opportunities due in part to poor government service delivery under the old EEA and other forms of BEE.
Black unemployment has doubled under BEE. On the expanded definition, black unemployment was 5.5 million in 2008, but at the latest count it was 11.1 million.
It is easily demonstrated, and widely understood, that BEE is partly responsible for this inhumane doubling of disadvantage. This has nothing to do with the race of people hired under race laws, and everything to do with the design of these race laws, including the old EEA.
That same legal design is transplanted across most of the workforce by the new EEA, which obviously and demonstrably threatens to make joblessness worse by openly chasing away investment and talent in the private sector while distracting people with racial tests who should be focused purely on adding value.
Joblessness is already the greatest threat to equality and social cohesion in South Africa. Polling commissioned by the IRR since 2013 indicates that unemployment gets the highest response rate when people are asked to identify the country’s biggest challenge. Adding to joblessness therefore compounds the country's greatest threat.
Minister Meth’s regulations are also unfair, since they abusively treat minorities as oppressive. One minority group, white males, is targeted at 4.1% in a plurality of categories. That means if an employer has 100 employees in one of those categories and 4 belong to that minority, then not a single additional member of that group can be hired if the company wants to stay on target.
There is no open democracy in the world that treats the hiring of a 5th worker out of 100 from a particular group as an instance of “overrepresentation” that must be blocked by race law. It is obviously not fair to do so.
South Africa is made up of nothing but a range of minorities, including the ultimate minority of one, that deserve equal protection before the law. That makes this country a “rainbow republic”. The EEA threatens to shred that rainbow and must now be struck down in court.
Media contacts: Gabriel Crouse, IRR Legal Executive Director Tel: 082 510 0360 Email: gabriel@irrlegal.org.za
Media enquiries: Michael Morris Tel: 066 302 1968 Email: michael@irr.org.za