Is Employment Equity still alive?

Of course it’s still alive.  But is it really, in the sense that it is effective and significant, and adhered to, let alone understood?

Here’s the problem, if Employment Equity was still in the frame and being adhered to by organizations obliged to submit EE reports, then how come so many companies simply disregard basic EEA rules?

It’s just happened again!  I have just been informed by a nearly tearful employment agent attached to a Disability organization, that the candidates she worked so hard to find , and had optimistically submitted , were rejected out of hand without benefit of interviews, on the grounds that they were white.  I don’t know why I am surprised, it has happened so often in my experience, that I ought to be inured to it by now.

Lets play around a little with a suitable analogy

Imagine,a company puts out specs for several positions.
For argument sake, lets say:

– A senior financial post like Financial manager or CFO.
– A middle level accounting post.
– An IT position, programming.
– A call centre position.

The agency lucky enough to be given the brief, is chuffed with these specs, works hard at gathering the best candidates , goes through all the checks, referencing, credit, criminal record etc.
The agency submits 3 great CV’s for each position.  Sends them before due time with an optimistic grin and awaits the clients reaction.  The client comes back to the agency , and without any discussion or negotiation, rejects all female candidates, stating simply, that they cannot take any women for these positions regardless if their CV’s are wonderful; explaining that company policy states only men may apply.

So, dear reader, lets examine a few things here.  Would you classify this behaviour as discrimination?  Would this be allowed in today’s business world?  If not what mechanism exists to prevent this sort of discrimination?  Would it work to prevent such practices happening?  How should the agency react?  Is it ok, to shrug and go back to the drawing board, and hope that you can still salvage the clients good will by submitting only male candidates?

So, I think we can agree, that this is indeed discrimination.  And I suspect, that this would not be easy to get away with today.  And yes, there is a mechanism to prevent this sort of discrimination, its called the Employment Equity Act. (Not to mention the Constitution and the Promotion of Equality and prevention of Unfair Discrimination act).  And yes, if used wisely it probably would prevent this particular discrimination from happening. In addition, with Gender Equity being fairly robust, the media would love the story and the client would be wise to withdraw the flagrantly unconstitutional , discriminatory stance they have chosen.  And the agency, what should they do?  Ought they simply keep quiet with their ears flat and their heads down? Or as is very likely, women in the agency would take serious offense at this position and raise the issue.  So what has this to do with Disability?

Believe it or not this exact thing is being practiced all over the country by large and small companies every single day.  The only difference is that the designated equity group is not women, but people with Disabilities. In this instance though one group within people with Disabilities, namely White persons but very often Coloured and Indian people with disabilities too, are being affected.

So lets unpack a little.
Firstly the Employment Equity act, EEA for short, classified three designated groups to be deserving of and requiring affirmative action measures.  As everyone knows, these include: Black people, Women And people with Disabilities.

So far so good. Without going into gory detail, suffice to say that for Disability especially, no racial disaggregation was made. In other words, this designation included white people amongst their coloured , Indian and Black fellows as deserving of affirmative action measures.  And yet….…

Here is an example of what I and many others see almost daily.  This from a senior HR manager in a large well known organization . This was after he was sent a CV of a person with a disability, in response to a request for skilled candidates with disabilities.

“Thanks, unfortunately we have to target African candidates first failing which we can look at Coloured and Indian.  Its just the way our transformation scorecard works.”

So how do we deal with this?
Is this discrimination?
Are not white persons with Disabilities equally protected and deserving of affirmative action consideration, in terms of the EEA ?
Why is the very piece of legislation intended to prevent this sort of discrimination not being taken seriously in this instance?

The answer and clue is in the last five words of the quote.
“How our transformation scorecard works “

What these words tell us is that in this company like most others, their transformation procedures are being dominated by BBBEE mechanisms such as scorecards to the detriment of Employment Equity expectations and legal procedures.

As will be spelled out in my next blog, this is in part due to the inexplicable but deliberate exclusion of white people with Disabilities from so called employment equity codes within BBBEE guidelines.

Until the Department of Labour wakes up and resumes its original anti discrimination position regarding affirmative labour practice as clearly layed out in the EEA, now 15 years on, companies will continue to be confused and tempted into flagrantly unlawful and discriminatory recruitment practices.

In the meantime, surely managers and staff are sufficiently equipped with moral compass to know right from wrong?
And what about the agencies, they frequently serve as recruitment gatekeepers, being the only route by which potential candidates can submit their CVS to organizations.

Surely  agencies  should provide moral and legal guidance  to their clients if they are confused or  in danger of perpetrating unlawful recruitment practices?

Finally, spare a thought for the candidate. Relying on what she knows to be her only legal ally in an otherwise pretty unfriendly environment. She submits her CV fully expecting EEA consideration and respect, but in fact is met with total disregard for the spirit and the letter of the EEA, the only practical legal friend she has  in helping her find a job.

Jeremy Opperman

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