SA’s new employment equity law calls for a more informed response - Daily Maverick

The draft employment equity regulations may well be an ‘incoherent mess’, as described by Prof Pierre de Vos, but their implementation will have serious and far-reaching implications for South Africa.

Gabriel Crouse

The draft employment equity regulations may well be an ‘incoherent mess’, as described by Prof Pierre de Vos, but their implementation will have serious and far-reaching implications for South Africa.

Professor Pierre de Vos, head of the Department of Public Law at UCT, wrote about the new version of the Employment Equity Act (EEA), and the even newer draft regulations under the EEA in Daily Maverick under the headline “Draft employment equity regulations an incoherent mess, but criticism largely based on false claims”.

Of particular interest are the draft “targets” for race and gender set at the intersection of sectors, “levels” of employment, and provinces. In many cases they “target” some minority races at “0.0%”, which has drawn “harsh criticism”.

In rebutting critics of the new EEA, De Vos quoted from the most important race-law case in the new South Africa’s history, SAPS vs Solidarity obo Barnard, commonly known as the Barnard case, decided by the Constitutional Court in September 2014. I will not quibble with the professor’s particular criticisms of the DA and Solidarity. I applaud De Vos for bringing attention to the Barnard case: the more said about Barnard the better, and I think even more deserves to be said.

Unlike De Vos I am not a professor of law, and I have no formal legal training at all, but ever since attending this lecture about the Barnard principle by the late former CEO of the South African Institute of Race Relations, John Kane-Berman, I have gone over the case and its upshots many times, finding points of public interest worth sharing.

Barnard Principle
Sometimes Barnard is spoken of as a case that established protections for workers from unfair discrimination. De Vos quoted the ConCourt majority opinion in the Barnard case as saying that a “designated employer may not adopt an employment equity policy or practice that would establish an absolute barrier to the future or continued employment or promotion of people who are not from designated groups”.

The prohibition on establishing absolute barriers sounds reassuring, and to an extent it is. But to what extent? That is the practical question.

For someone like me, it can be difficult to understand what judges and law professors mean when they say there can be no “absolute barrier”. In the context of apartheid I know what absolute barriers were, but what about today? What would count as a merely partial barrier today? What would count as contingent? What does the “Barnard principle” practically allow, and what not?

Seeking answers to questions of this kind shifts my attention from the intricate legal language issued by judges to the simple order given by the court. The order is, in a sense, where the gavel strikes reality. Reality is where I can get a grip on meaning. In the Barnard case the order came down in favour of the government employer and against the employee. SAPS decided not to promote the employee (white female) two years in a row explicitly because of her race, and kept the post vacant instead.

Correctional Services’ elaboration
The “Barnard Principle” is a phrase used by the ConCourt in November 2015, a year after Barnard, in Solidarity vs The Department of Correctional Services. In that case various people were denied job appointments because of race and gender. It started at the Labour Court, where Judge Hilary Rabkin-Naicker handed down her judgment in October 2013, before the ConCourt heard Barnard, but after the Labour Appeal Court (LAC) had given its unanimous judgment in Barnard in favour of SAPS.

In her judgment, Judge Rabkin-Naicker wrote that (bold in original), “The Barnard matter, which binds this court, held that affirmative action measures are to do with substantive equality and not individual rights to equality and dignity.

“Barnard is also authority for the proposition that persons… have the discretion to keep posts vacant in order to comply with appointing suitably qualified members of designated groups in line with their employment equity plan.”

Interestingly, the majority ConCourt opinion in the eventual appeal on that case, penned by Justice Raymond Zondo (now Chief Justice), quoted both those sections from Judge Rabkin-Naicker’s judgment, and effectively upheld her decision that one of the applicants (white male) be denied promotion based on what it called the “Barnard principle”.

The ConCourt set out the facts of the other applicants as follows. The “individual applicants were denied appointment. In the case of males, the basis for this decision was that they were Coloured persons and Coloured persons were already overrepresented in the relevant occupational levels. In the case of women, the basis was that women were already overrepresented in the relevant occupational levels.”

The ConCourt majority raised a telling point when it sought an answer to the following: could the Barnard principle be applied against a black candidate?

What a question. It is important to give that question some context, so here is a paragraph of that same opinion [emphasis added].

“The important question that arises is, therefore, whether the Barnard principle applies to African people, Coloured people, Indian people, people with disabilities as well as women or whether its application is limited to White people. Ms Barnard was refused promotion on the basis that White people were already overrepresented in the occupational level to which she wanted to be appointed. This Court upheld this reason.

“The question is, therefore, whether an employer may refuse to appoint an African person, Coloured person or Indian person on the basis that African people or Coloured people or Indian people, as the case may be, are already overrepresented or adequately represented in the occupational level to which the particular African, Coloured or Indian candidate seeks appointment.

“The question also arises whether the Barnard principle applies to gender with the result that a man or woman could be denied appointment to a position at a certain occupational level on the basis that men or women, as the case may be, are already adequately represented or overrepresented at that level.”

In my opinion all South Africans should know that the ConCourt asked this question, and then answered it clearly.

The answer from the ConCourt majority [emphasis added] is that “a designated employer is entitled, as a matter of law, to deny an African or Coloured person or Indian person appointment to a certain occupational level on the basis that African people, Coloured people or Indian people, as the case may be, are already overrepresented or adequately represented in that level. On the basis of the same principle an employer is entitled to refuse to appoint a man or woman to a post at a particular level on the basis that men or women, as the case may be, are already overrepresented or adequately represented at that occupational level.”

In that case, the ConCourt found that although denying coloured people and women could be allowed under the Barnard principle, the “targets” in that particular instance were drawn without attending to the fact that coloured people formed a higher portion of the Western Cape population than the population of the rest of the country:

“In failing to use the demographic profile of both the national and regional economically active population to set the numerical targets,” the ConCourt majority found, “the Department acted in breach … and, thus, unlawfully”.

So the problem with applying the Barnard principle against Coloured men and women in the Correctional Services case was just that regional demographics had not been taken into account in setting the “targets”. That problem has been solved by the new EEA regulations De Vos wrote about.

This adds meaningfully to the context of the Barnard quote De Vos mentioned and helps explain something else that he touched on. The new EEA race “targets”, De Vos noted, “do not add up to 100% or even close to 100%”. He then wrote that “we do not know why this is so. Do the compilers of these tables know how percentages work, or is there a secret explanation for this oddity?”

In fact, the ConCourt’s explanation of the “Barnard principle” in Correctional Services demystifies the sub-100% “targets”. To recapitulate the point: an employer “is entitled, as a matter of law, to deny” you “appointment” if your race and gender “are already overrepresented or adequately represented in that level” under the Barnard principle. In short the “targets” set a threshold to entitlement. Once the target is reached the employer is entitled not to hire anyone from the targeted group.

The EEA regulations come in by putting numbers to what counts as “overrepresented or adequately represented in that level” for now. If the employer has hit the “target” for all groups, where the targets’ sum is less than 100%, the employer can choose to deny anyone an appointment from any group accordingly.

One problem the regulator, in this case Minister of Employment and Labour Thulas Nxesi, faces is this: the lower the “target” he sets for any particular group the easier it is for an employer to reach that “target”, after which it can deny appointments to applicants of that group based on race or gender.

But the higher the target for any particular group, the more pressure an employer is put under to use that same “entitlement” against other “already overrepresented” individuals in pursuit of the higher unmet “target”.

For someone like me, who opposes the EEA in principle and in practice, there is no surprise that targeting people by race creates this kind of dilemma. For people who promote racial “targets”, however, other lessons will be drawn. I think the most likely would be that the “targets” summing below 100% should have to be moved higher, progressively, from time to time. I doubt that will be an unwelcome lesson to proponents of “targets”.

What is racial target zero?
What about the 0.0% “targets”? The Labour Appeals Court (LAC), had the following to say in Minister of Safety and Security vs Naidoo, which was heard a month and a half after the Barnard ruling back in 2014. Again SAPS denied someone promotion because of race and gender (Indian female this time), and again the LAC unanimously found in favour of SAPS.

The LAC opinion stated that the “fact that the ideal allocation for Indian females… was zero” did not itself “proscribe the appointment of Indian females”. That is partly because if there had “been more posts on level 14 in Gauteng the formula might have yielded a different result that would have made provision for Indians or Indian females”.

In other words, if SAPS created more station-commander positions in Gauteng, the “ideal allocation for Indian females” for such positions would have radically transformed from a fraction rounded down to “zero” into a fraction rounded up to one. Then the applicant might have stood a chance.

This reasoning, if reasoning is the word, could not apply to the private sector under the new EEA, since the “0.0%” ideal “targets” under the new EEA are not based on the number of jobs in the province, but rather on the proportion of people of the “targeted” race.

What could still apply is the LAC’s observation that “two Indian females were appointed on level 14 in KwaZulu-Natal because the requirements of the respective business units provided for such appointments. This… showed that the employment equity plan was not an absolute barrier against the employment of Indian females” in Gauteng.

In other words, Naidoo could have moved from Gauteng to KZN to fit the “target”. Therefore she did not face an “absolute barrier” or, for that matter, any “quotas” prohibited by the EEA.

I think that it is almost impossible to mention this without adding that, with all due respect to the court, things have gone badly wrong. Many, ultimately millions, are going to have to get serious about putting a stop to this.

Some may take solace in the notion that the EEA “may not impose quotas” and prohibits an “absolute barrier” to employment. I take no such solace. The fact is that several individuals who have already hit glass ceilings in the public sector explicitly because of racial “targets”, went to court, and the gavel came hammering down against them.

That is the practical upshot for their lives. The practical upshot for South Africa is that such targets have now been spread across much of the private sector.

As a final bit of context it may be worth recalling that Employment and Labour Minister Thulas Nxesi – who recently said of black supporters of the DA that they were “like a rented black” – made the case for the EEA by arguing in Parliament that “we now need a more aggressive strategy including in legislation”.

In my view South Africans need a more informed response. 

Gabriel Crouse is a Fellow at the Institute of Race Relations