Geslag en Regstellende Aksie in die Werkplek

[摘要] The concept of affirmative action, in contrast to discrimination, does not have auniversal uniform meaning. On the one hand affirmative action can be seen as anattempt to promote equal opportunities for individuals or groups previouslydisadvantaged by discrimination. On the other hand, its application is controversialwhen black people, women and disabled people are given preference, for example,when decisions are made that preclude the appointment of better-qualifiedcandidates. Affirmative action therefore has pros and cons, depending on theapproach adopted. In South Africa affirmative action, as defined in s 15 ofEmployment Equity Act 55 of 1998 (EEA), is seen as a measure that ensures equalemployment opportunities and equitable representation of suitably qualified peoplefrom designated groups. Affirmative action thus enjoys legislative recognition and isjudicially developed by the courts. Nonetheless the concept is problematic. A specificconcern is the fact that the meaning of affirmative action is even more elusive whenthe conceptual relationship to discrimination and equality is examined in an effort toidentify its theoretical foundation. Affirmative action is aimed at pursuing workingconditions that promote a real, and not just theoretical, realisation of rights. Itfocuses on addressing the burden of discrimination, which is still borne by certaingroups in society. In Harmse v City of Cape Town [2203] 6 BLLR 557 (LC), the courtfound that the broader idea of constitutional equality implies that the elimination ofunfair discrimination includes affirmative action. The court based its reasoning on s9(2) of the equality clause of the Constitution, wherein provision is made formeasures, such as affirmative action, that are 'designed to protect or advancepersons, or categories of persons, disadvantaged by unfair discrimination… InDudley v City of Cape Town [2004] 5 BLLR 413 (LC) the court found that the EEAdistinguishes between the prohibition of unfair discrimination and affirmative action,as contained in chapters II and III of the Act, regarding approach, aim andapplication. This however does not imply that the two concepts are in no wayconnected. Another area of concern relates to doubts surrounding the effectiveness ofaffirmative action. The gender gap in the workplace becomes apparent when thelabour market composition is taken into consideration. This emphasises the fact thataffirmative action is not accomplishing sufficient transformation to further equality inthe workplace. The origin of the problem lies in the fact that the impact of affirmative action depends on the approach to equality (be it formal equality, equality ofopportunities or substantive equality) that it is designed to promote. Anotheraffirmative action dilemma is the problem of enforcement of measures of this nature.Other alternatives, such as diversity management where both the employer and theemployees benefit, should possibly be considered as a method of effectivelyempowering women to ensure that they can compete successfully with men in thelabour market. Diversity management ultimately appears to have a social, as well asan economic advantage in the development of equitable representation ofdisadvantaged groups in the labour market.

[发布机构] Stellenbosch University