Now that the Department of Labour is cracking down on employers who fail to implement affirmative action employers are making more and more panic decisions to try to improve their organisation’s racial demography.

However, while the Employment Equity Act (EEA) enforces affirmative action it also prohibits employers from discriminating unfairly against applicants for employment. In addition, the soon to be implemented Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) prohibits parties other than employers (e.g. recruitment agencies and search agencies) from discriminating unfairly against job applicants amongst others.

Such unfair discrimination could include, but is not limited to, discrimination on arbitrary or subjective grounds such as race, gender, family responsibility, religion, age, disability, opinion, and trade union affiliation. In addition, should a job applicant be turned down purely due to lack of sufficient experience this could, under certain circumstances, be considered to be unfair discrimination.

Furthermore, should a job application be turned down due to the applicant failing a psychometric test which is found to be biased against the applicant’s population group, this could be considered to be unfair discrimination.

The EEA makes exceptions to its anti-discrimination provision and included amongst such exceptions is the provision that, where discrimination takes place for purposes of promoting affirmative action, such discrimination would not normally be unfair. Thus, for example, if the job application of a suitably qualified white male is turned down purely because he is a white male and if, for example, a black, female or disabled person is appointed instead, this will not necessarily be construed as unfair discrimination against the white male even if the person appointed was less suitable for the job!

However, despite this provision employers need to tread carefully when discriminating against job applicants even when they think that the abovementioned exception applies. In the case of Walters vs Transitional Local Council of Port Elizabeth & Another (2000, 21 ILJ 2723) the Labour Court found that this exceptional provision will not apply in each and every case.

In the Walters case the job applicant, a white female with the necessary experience, was short listed for a position of principal personnel officer together with another applicant who was a black male. The selection committee of the Transitional Local Council recommended the black male; and the white female therefore referred to the Labour Court an unfair discrimination application.

The Council’s defence was that it had chosen the black male on the basis of affirmative action principles. However, based on the facts of this specific case, it was shown that the Council had not formulated an affirmative action plan in accordance with the Agreement on Equal Employment and Affirmative Action which had been concluded between the Council and employee representatives.

The Court therefore found that the Council had discriminated unfairly against Walters. This was because the EEA’s provision allowing employers to discriminate on the grounds of race (for example) in the interests of affirmative action only applies to employers who have and who are properly complying with a proper affirmative action plan.

In the case of Coetzer and Others vs the Minister of Safety and Security (2003 2 BLLR 173) the Labour Court again voted against (alleged) racial discrimination despite the fact that it had been perpetrated in the name of affirmative action.

Coetzer and his colleagues were all members of the police force’s (SAPS) explosives unit. They complained that it was unfair for them to be refused promotions due to the fact that they were white males and therefore did not belong to groups designated for affirmative action (Black, female or disabled people). The SAPS claimed that it was merely carrying out its employment equity plan (EE Plan) in accordance with the law.

The court noted however, that the SAPS had also undertaken not to erect absolute barriers against advancement of employees from non-designated groups. Also, while there were no vacant posts for non-designated employees at the time there were vacant posts for members of designated groups. However, no applications from members of designated groups had been received.

When a second attempt to attract members of designated groups to the unit failed the SAPS still refused white males the right to be considered for the posts. The Court found that this was an unfair and irrational decision because it resulted in key posts not being filled despite the fact that people from designated groups did not wish to apply for the posts. The SAPS was therefore ordered to promote the white males.

Thus, despite the increasing pressure being placed on employers to implement AA there is no room for panic in the employer’s strategy. It is however crucially important for employers designing and/or implementing their AA policies or recruiting employees to obtain proper legal advice before taking any action.

Written by lvan lsraelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: ivan@labourlawadvice.co.za. Web Address: www.labourlawadvice.co.za.

This article first appeared in The Star.