The brief of the Committee on the Improvement of the Quality of Life and Status of Women is to monitor government's implementation of CEDAW and the Beijing Platform for Action. In relation to legislation the Committee's brief is to ensure a gender perspective on the framework and content of legislation. Our modus operandi has been to strengthen and support the work of the existing Parliamentary Committees in this regard. Hence this report on the Employment Equity Bill (EEB) to the Labour Committee.

The EEB is crucial for women. Many of the submissions made to the Parliamentary Portfolio Committee on Labour highlighted aspects of the bill which are important for women and suggested amendments and additions to ensure women's substantive equality.

The Bill aims to achieve employment equity. The two main ways in which the bill aims to achieve equity is by prohibiting unfair discrimination (chapter 11) and by requiring employers to introduce affirmative action measures to address the disadvantage suffered by women, black people and the disabled. (chapter 111) The Committee's work is premised on the reality that women often experience the brunt of disadvantage suffered by groups such as black people, the disabled and the poor.

The Committee has considered the various submissions made by organisations which highlighted gender aspects of the EEB. The Committee's comments and recommendations are set out below.

Chapter 111: Affirmative action

The groups that employers must take into account when implementing affirmative action measures are women, black people and people with disabilities. Black women face particular discrimination which results from a combination of race, gender and class discrimination and oppression.

There is a concern that employers will be able to introduce affirmative action plans to employ mostly black men, white women and white people with disabilities.

When the Director-General assesses whether the employer's equity plan complies with the Act there are certain factors which he must take into account. One of these is the demographic profile of the national and regional economically active population. This should mean that employers must also employ black women, but most black women are in the informal sector or unemployed and this factor might have the consequence that less black women are employed.

The removal of unemployed people from the demographic profile will result in an exclusion which will impact on the very groups that the bill is targeting.

Suggested amendments

The Committee endorsed the following:

1. Definition of designated group Amending the definition of designated group: "designated group" means black men, black women, white women and people with disabilities (SACC) IN THE ALTERNATIVE, SHOULD THE DEFINITION OF DESIGNATED GROUP NOT BE AMENDED: The addition of a further factor in assessing compliance as follows : "41(b) the extent to which people who belong to more than one designated group are equitably represented in relation to the items set out in S41(a) (I) - (v)" OR the amendment of the existing S41 (d): The extent to which the designated employer has made progress in eliminating employment barriers that adversely affect people from one and more than one designated group; (CLC) and (CALS) 2. S15 Affirmative action the addition of a new clause under the section which sets out the affirmative action measures that employers must take: "Where appropriate, affirmative action measures must address in particular the position of black women" (COSATU)

The Committee also considered the following amendments. The IFP raised concerns in relation to the first amendment. The Committee preferred the COSATU formulation to the amendment proposed by the SABC:

S41 Assessment of compliance

• Amending s41(a) (11) by deleting the requirement of economically active when taking into account the demographic profile of the national and regional population.

(SAHRC and CLC)

• A suggestion that the bill make provision that employers are required when drawing up affirmative action measures to give priority to prospective employees who face multiple barriers

(SACBC)

Chapter 11 : Prohibition on unfair Discrimination

The Bill provides that no person may discriminate, directly or indirectly, against an employee in any employment policy or practice on one or more grounds including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language and birth.

If an employee has been discriminated against the employee can approach the CCMA or the Labour Court for a remedy which can include damages, reinstatement etc.

The bill does not spell out what the difference is between direct and indirect discrimination and exactly what these terms mean.

Direct discrimination is when a person treats another person less favourably than another for example because of their sex. Direct discrimination is fairly easy to identify and to prove. Indirect discrimination in the employment sphere takes place when an employment policy or practice appears to be neutral, but has a negative impact on a particular group. An example would be where an employer requires its employees to be 6 foot tall, a condition which very few women meet.

Indirect discrimination is very difficult to prove. Most discrimination which women face is indirect. Cases of discrimination will go to the CCMA. The commissioners at the CCMA are busy and have no experience in these type of cases. For these reasons it is important to spell out in the Bill what indirect discrimination is and to draft it in a way which will make it easy for women to bring these cases to the CCMA.

Suggested amendments

The Committee endorsed the following:

S6 Prohibition of Unfair discrimination The addition of a new S6(2) to define indirect discrimination "For the purposes of this Act, a person (the"discriminator") discriminates unfairly against an employee (the "aggrieved person") on one or more of the prohibited grounds if the discriminator imposes or proposes to impose an employment policy or practice that has, or is likely to have, the effect of disadvantaging a group of persons who are identified by a prohibited ground of discrimination in terms of subsection 1 and of whom the aggrieved person is a member." (CLC) and (CGE)

Discrimination on the ground of pregnancy

The bill includes pregnancy as a ground of discrimination and pregnancy is defined in the definition section of the EEB: " pregnancy includes any medical circumstances related to pregnancy."

There is a concern that the definition is too narrow. In other countries it has been identified that women are often discriminated against merely because they can have children or have the potential or ability to have children.

An example is that when women apply for jobs they are often asked whether they intend to have children and if they say yes, they do not get the job. Often women of a certain age are less likely to get jobs because employers assume that they will be having children in the near future.

These aspects are not covered by the present definition. Another problem women face is that when they have miscarriages or a still born baby they are often denied leave etc. because they are no longer pregnant and/or they did not give birth to a live baby.

Suggested amendments

The Committee endorsed the following :

Definition of pregnancy "Pregnancy includes any circumstance related to pregnancy, the termination of a pregnancy (including but not limited to birth, miscarriage or still birth), or potential pregnancy which includes a reference to: the fact that the woman is or may be capable of bearing children; or the fact that the woman has expressed a desire to become pregnant; or the fact that the woman is likely, or is perceived as being likely, to become pregnant. (CLC)

The Committee also considered the following formulation but preferred the above proposal on the basis that it is broader and more comprehensive

• the definition of pregnancy must include

"intended pregnancy
any termination of pregnancy
any medical circumstances related to pregnancy or birth"

Family responsibility as a ground

The bill includes family responsibility as a ground of discrimination. It is defined:"family responsibility" means "the responsibility of employees in relation to their dependent children or in relation to other members of their immediate family who need their care or support."

This definition is also too narrow; it excludes same sex couples and does not necessarily include extended family members.

Suggested Amendments

The Committee endorsed the following:

Definition of Family Responsibility "family responsibility" means the responsibility of employees in relation to their spouse or partner, their dependant children, or in relation to other members of their immediate family who need their care or support."          "partner" means a person irrespective of sexual orientation, or, marital status who shares an intimate and committed relationship with another person based on a mutual obligation of support for basic living expenses during the period of the relationship. (CLC) and (EEA)          "dependant children" means any children who are wholly or substantially dependant on the employee          "immediate family" means an adult child, parent, grandparent, grandchild or sibling of the employee or of a spouse or partner of the employee or any other family member who is wholly or substantially dependant on the employee (CLC) and (CGE) The Committee agreed that the inclusion of stepchildren and step parents should be drawn from the following submission and included in the above formulation: "family" means: "an employee's spouse or life partner, children or stepchildren of spouse or partner, parents or step parents of spouse or partner and any other direct dependants of spouse or partner" (NCGLE) and (CALS)

Disability as a ground in relation to HIV

The Bill defines "people with disabilities" as "people who have recurring physical or mental impairment which substantially limits their prospects of entry into or advancement in employment"

There is a concern that this definition might not include HIV/Aids. The alarming spread of the virus affects particularly women. People often suffer discrimination on the basis that they have the virus or that they may develop AIDS if they are HIV positive.

Suggested amendments

The Committee could not reach agreement on the inclusion of the following clause. The NP did not agree to its inclusion.

S6 Prohibition of Unfair discrimination

• the addition of a subclause to s6(1)

" The human immuno deficiency virus (HIV) will be regarded as a disability for the purposes of this chapter." (note NOT the chapter on affirmative action)

(EEA) , (Aids Legal Network) ( NACOSA) (Aids Law Project)

Reasonable accommodation

The chapter on affirmative action in the bill provides that affirmative action measures must include making reasonable accommodation for people from designated groups in order to ensure that they enjoy equal opportunities and are equitably represented in the workforce of the designated employer.

Reasonable accommodation means any modification or adjustment to a job or to the working environment that will enable a person from a designated group to have access to or participate or advance in employment.

In relation to disability this could for example mean that the employer must build ramps, or install special lifts etc. In relation to gender it could for example mean adapting work and break schedules to accommodate the special needs of pregnant employees. It could also mean changing job duties.

In Britain there was a case where a woman applied for a job in a man's suit shop. The employer said that she could not have the job because it would involve measuring the inside of men's legs to see what size suit they needed. The court held that the employer could reallocate duties because all the male employees could do the measuring and the woman could do all the rest of the duties that the job entailed.

It is important that this idea of reasonable accommodation is also included in the chapter on discrimination. This would mean that the elimination of discrimination must also take place through employers taking positive steps, i.e. they must work actively to stop discrimination.

The question which one immediately asks is how much must the employer do? What is it reasonable to expect the employer to do? Some of these measures may be expensive and difficult to implement and others not. For this reason it is suggested that the employer must make reasonable accommodation but not if it causes undue hardship on the employer.

Suggested amendments

The Committee endorsed the following:

Definition of reasonable accommodation "reasonable accommodation" when referred to in chapter III means any modification or adjustment to a job, to the terms and conditions of employment or to the working environment that will enable a person from a designated group to have access to or participate or advance in employment. When referred to in chapter II, it means any modification or adjustment to a job, to the terms and conditions of employment or to the working environment that will enable any person from a group of persons who are identified by a prohibited ground of discrimination in section6(1) to have access to or participate or advance in employment. S6 Prohibition of unfair discrimination the addition of a new s 6 (3): Unfair discrimination includes: (a) the failure to make reasonable accommodation. (i) there may be no finding that an employer has failed to make reasonable accommodation unless the adjudicating body is satisfied that the needs of the groups of which the person is a member cannot be accommodated without undue hardship on the employer responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements and any other relevant factor. It is also suggested that the Commission for Employment Equity should issue a code of good practice or regulations including guidelines which list more detailed factors relevant to the determination of `undue hardship. The results of `balancing these factors against the rights of the employee to be free from discrimination will necessarily vary from case to case. (CLC) and (CGE)

Whilst the Committee agreed on the above it considered the following submission which is substantially similar:

• the elimination of unfair discrimination may entail the requirement of reasonable accommodation by the employer

  reasonable accommodation cannot be found to have taken place unless the employer has changed the environment short of undue hardship

  the bill should define reasonable accommodation in more detail and undue hardship should be defined or guidelines could be issued by way of regulation or a code.

  the only factors relevant to undue hardship should be cost and health. In relation to cost undue hardship should only be found where the costs are:

  quantifiable
  shown to be related to the accommodation
  so substantial that they would alter the essential nature of the enterprise or
  so significant that they would substantially affect the viability of the enterprise

(SAHRC)

Defences to discrimination: Inherent requirements of the job

There are defences which employers can raise to discrimination claims. One of these is that the discrimination is not unfair because it is based on the inherent requirements of the job.

An example of the inherent requirement defence is where a man applies for a job, but does not get the job because he is a man and the employer says - it is an inherent requirement of the job that a woman is required - for example a female model or a wet nurse.

The problem with this defence is that employers have stereotyped ideas about what jobs should be done by men and which jobs should be done by women. There are also often jobs that employers think women cannot do, which they can. This defence can prejudice women.

One way in which to make sure that this defence is used as narrowly as possible and does not prejudice women is to list the types of jobs where sex is an inherent requirement. The types of jobs must be linked as closely to biology as possible.

Suggested amendments

The Committee endorsed the following:

S6 prohibition of Unfair discrimination 1. the addition of particular before the phrase "inherent requirement" S6(2)(b) It is not unfair discrimination to distinguish, exclude or prefer any person on the basis of an inherent requirement of a particular job 2. the addition of the following clauses immediately after the above clause "Sex may, but will not necessarily be, an inherent requirement of a particular job when: (a) the duties of the position involve performing in a dramatic performances or other entertainment in a role that, for reasons of authenticity, is required to be performed by a person of the relevant sex; (b) the primary duties of the person need to be performed by a person of the relevant sex to preserve decency or privacy because they involve the fitting of clothes for persons of that sex; (c) the primary duties of the position include the conduct of searches of the clothing or bodies of persons of the relevant sex ;or (d) the occupant of the position is required to enter a toilet ordinarily used by persons of the relevant sex while the lavatory is in use by persons of that sex. An employer may approach the Commission for Employment Equity for a declaration that sex is an inherent requirement of a particular job which is not covered by one of the above grounds. (CLC) and (CGE)

Sexual harassment

The bill provides that harassment of an employee is a form of unfair discrimination and is prohibited on any one, or a combination of grounds of unfair discrimination listed. There is a serious concern that the way in which the bill is drafted will mean that there is no remedy in labour law for cases of sexual harassment:

The bill provides that disputes concerning harassment must be dealt with under the Labour Relations Act (LRA), but the provisions of the LRA (Schedule 7: Item 2(1)(a)) under which a sexual harassment case can be brought are being repealed by the equity bill!

There is a code on sexual harassment which was drafted at NEDLAC. This code is going to be attached to the LRA. The Code does provide that if a dispute is not resolved the aggrieved person must refer the dispute to the CCMA for conciliation within 30 days of the dispute having arisen. If the dispute remains unresolved the party may take the matter to the labour court.

The problem is that legally the remedy or enforcement procedure, must be in a statute or legislation and not in a code because of the type of legal status that a code has.

Organisations suggested that the Code should be appended to the EEB and a dispute concerning sexual harassment should be dealt with in terms of the EEB.

Suggested amendments

The Committee endorsed the following:

S10 Disputes Concerning this chapter the amendment of section 10(2) of the Bill by deleting "other than an allegation of harassment" and the deletion of section 10(3) in its entirety. (CLC), (COSATU) , (SAHRC) and (CGE)

Equal pay

The bill provides that an employer must address unfair discrimination in relation to a wage differential through:

Collective bargaining
through other bargaining
through measures provided for in the BCEA or
in any similar manner that is appropriate in the circumstances

There is however a further aspect in relation to wages which affects women. Often jobs that women perform are seen as "women's work" and are valued less than other jobs. This means that women are often paid less. Examples are nursing, secretarial work, domestic work etc.

It is important that the bill guarantees equal pay (remuneration) for work of equal value. The bill by way of codes of good practice or regulation should lay down guidelines to assist the court in determining what constitutes work of equal value.

The present provision in the Bill states that employers must address wage disparities through collective bargaining. However, "collective bargaining arrangements may reflect and perpetuate gender inequality and agreements which are collectively reached may disadvantage women." (CLC)

The CGE highlighted that Article 11 of CEDAW deals comprehensively with the issue of employment . It obliges States Parties to take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights in the workplace. At present, South Africa falls short of full compliance with the requirements of Article 11.

Article 11( 1) (d) provides "the right to equal remuneration , including benefits and to equal treatment in respect of work of equal value, as well as equality of treatment in the evaluation of the quality of work."

Suggested amendments

The Committee endorsed the following:

S6 Prohibition of Unfair discrimination the addition of a clause as follows: "Unfair discrimination includes a failure to pay equal remuneration for work of equal value" (CLC) and (CGE)

Medical Testing

The bill provides that medical testing of an employee is prohibited unless legislation permits or requires the testing OR it is justifiable to do so in the light of medical facts, employment conditions, social policy, the fair distribution of employee benefits or the inherent requirements of the job.

There is a concern in relation to testing for HIV. The SALC has recommended that pre-employment HIV testing should be prohibited save in cases of alleged exception where permission is sought from the Labour Court. The only circumstances in which permission would be granted for the job would be based on the inherent requirements of the job.

Suggested provisions

The Committee endorsed the following:

S7 Medical testing addition of the following: "the prohibition of medical testing will include all and any form of HIV testing" AND the addition of the following to S7(b) "HIV testing is only justifiable if based on the inherent requirements of the job" (NACOSA), (Aids Legal Network) (Aids law project) (SACC)

Chapter IV: Commission for Employment Equity

The bill provides for the establishment of a Commission for Employment Equity. The function of the Commission is to advise the minister on codes of good practice, regulations and policy. It also has a research function.

The Commission has a chairperson plus eight other members, all nominated by the voting members of NEDLAC - 2 from each of the following: labour, business, the state and the organisations of community and development interests of the development chamber of Nedlac.

A party that nominates persons must have due regard to promoting the representivity of people from designated groups.

Is this enough?

Suggested amendments

The Committee endorsed the following:

1. The recommendation of the CGE that the establishment of a Commission for Employment Equity be re- visited. It may make more sense to strengthen the capacity of already existing structures and enabling those structures to fulfil the functions envisaged in Section 29. 2. The inclusion of the following clause: "when appointing the commissioners in terms of subsection (1) the minister must have due regard to promoting the representivity of people from designated groups" (HRC) 3. The inclusion of a clause which provides that each person appointed to the Commission has expertise in at least one of the designated areas.

Whilst the Committee endorsed the above it also discussed the following options:

• The CGE recommends that the Human Rights Commission and the CGE be considered as ex-officio members of the Commission for Employment Equity.

• It is proposed that at least three black women should sit on the commission and people with different disabilities

(NADEL)

• all parties who nominate members to serve on the Commission must include a majority of members from designated groups in their nomination lists. Specifically it requires the minister to ensure that the Commission includes at least a majority of black people and women with a significant number of people with disabilities

(EEA)

• replace SS28(3):

(3) In order to promote the representation of people from designated groups the Minister shall ensure that the commission includes at least five black people, at least three women and at least one disabled person. A party that nominates persons in terms of SS2 must have due regard to this requirement in selecting nominees

(SACC)

• The minister should be required to be satisfied of the representivity of the nominations by the parties to NEDLAC before appointing the commission

(SACBC) and (CALS) and (HRC)

Chapters 11 and 111

COSATU is concerned that the EEB will not reduce the apartheid wage gap, which is characterised by a concentration of low wage, low skill employment, particularly amongst African and women workers. It states that the bill should not only be confined to horizontal equity where there is racial and gender representivity within a particular strata of the labour market while there continues to be vertical inequity between those at the bottom and the top.

Suggested amendments

The Committee wishes to refer the Labour Committee to the submissions made by organisations in this regard. It did not discuss this aspect in detail and does not have any recommendations in this regard.

General

Access to the legal system

Litigation is expensive and the vast majority of women will not be able to enforce discrimination claims under this legislation. Employers can refuse to settle at the CCMA and then the matter goes to the Labour Court which is extremely costly.

The HRC recommends that a fund should be set up to cover the litigation costs of those who cannot afford the costs. The fines collected from employers for non-compliance with the equity plans could be kept in a separate fund and used for this purpose.

Conciliation

This section is quoted directly from the HRC submission.

Appropriateness of Conciliation in discrimination cases

There is considerable evidence to show that conciliation may be inappropriate in resolving discrimination disputes unless they have been properly screened. Some of the reasons for this are:

• Where conciliator success is linked to settlement rates, disputants may be vulnerable to manipulation by the conciliator. The drive to settle disputes arising from the Bill may be exacerbated in CCMA proceedings since that agency places considerable emphasis on settlement in conciliation without any or adequate evaluation of the quality of outcomes.
• Where a complainant in a dispute arising from alleged discrimination is not adequately represented, the impetus to settle is not always appropriate¹. Complainants may be nudged into settling too early due to power imbalances which are inherent in discrimination cases.
• The privacy of conciliation may mask recidivism and systemic discrimination especially in cases of harassment. The conciliation process is a private one and the proceedings without prejudice to either party, therefore a Commissioner conciliating a dispute under the Bill will have no power to report cases of repeat offences to the Commission on Employment Equity, Director General or a Labour Inspector.

1. Representation/advocacy

We recommend, for the reasons set out above, that advocacy groups, specialist non-governmental organisations and agencies such as the South African Human Rights Commission and the Commission for Gender Equality be allowed to represent or arrange representation for complainants at conciliation. We would further suggest that the Commission on Employment Equity be given the authority and resources to undertake such an advocacy function (on a limited scale).

We suggest the following wording for a clause on "representation at conciliation":

" In conciliation proceedings a party to the dispute may appear in person or be represented by a co-employee or by a member, an office bearer or official of that party's trade union or employer's organisation or by a representative of the SAHRC, CGE, or other human rights organisation registered with the CCMA and, if the party is a juristic person, by a director or an employee."

2. Screening

We recommend that a specialist division within the CCMA, (or other agency accredited by the CCMA), should be authorised to screen all disputes of alleged discrimination lodged under Chapter II to assess whether they are appropriate for conciliation or formal hearing - whether by arbitration or litigation.

3. Fact-finding in conciliation

Evidence in a number of jurisdictions (UK, Australia, Canada and N Ireland)² suggest that complainants in discrimination cases often find it extremely difficult to put together coherent evidence in discrimination disputes, especially where the allegation arises from alleged indirect or unintended discrimination. The reason for this is not simply that the evidence is difficult to come by but that the victims of such discrimination are lay persons who are not trained in this difficult and unexplored area of law.

In terms of the definition of conciliation in the LRA, which needs to be read into the Bill, conciliation may include "conducting a fact-finding exercise"³. This would typically be dedicated to finding settlement of the dispute rather than as part of advocacy or trial preparation.

Fact-finding will be particularly necessary in unfair discrimination disputes and it is important that complainants be assisted in building their cases. We submit that the CCMA is not the appropriate body to conduct this work because its credibility as a neutral disengaged dispute resolution agency would be jeopardised by identification with the cause of the complainants.

We recommend that this kind of fact-finding which would be to help a complainant prepare his or her case should be done by an agency dedicated to promotional/advocacy work, whether an NGO or agency such as the CEE, SAHRC or CGE.

4. Approval of settlements

In the absence of adequate representation in conciliation hearings, there is a likelihood that an individual complaint will be resolved yet the environment, which generated the complaint, remains unaffected. Already experience at the CCMA in dealing with the few discrimination cases that have been referred to it has shown that repeat offenders often pay their way out of many individual disputes. Systemic discrimination is then left unaddressed.

One way to get around this problem, would be to confer on a CCMA commissioner some authority to approve settlements (as in Canada ). This would act as a barrier to an employer strategy to 'pay off' a complainant and to thereby sustain the systemic discrimination. In order to circumscribe this power of approval, the bill could prescribe the circumstances where commissioners may consider withholding approval.

Footnote re the CGE: Where reference has been made to the CGE, these are preliminary issues flagged by the CGE and not their final positions as adopted by a plenary of the whole CGE.

List of organisations referred to:

Footnotes

² John Hucker 'Anti-discrimination law: a Canadian perspective' in Anti-Discrimination Law Enforcement: A Comparative Perspective ed. M MacEwen Ashgate Publishing Company Suffolk p133ff

³ §135(3) Labour Relations Act 66 of 1995 reads:- The commissioner must determine a process to attempt to resolve the dispute which may include -
(a) mediating the dispute;
(b) conducting a fact-finding exercise; and
(c) making a recommendation to the parties, which may be in the form of an advisory arbitration award

⁴ In Canada, commissioners must approve the terms of all settlements. This could mean that if they feel a complainant has not been fairly compensated or that an employer has not agreed to take the steps necessary to eliminate discriminatory practices, the matter could be referred back to conciliation. Alternatively, if the conciliation has failed a Human rights commissioner in Canada has the power to decide whether a matter can be referred to litigation before a tribunal. They can also decide whether a matter cannot proceed - typically where they feel a complainant's demands are unreasonable in the face of an offer to settle or where the evidence of discrimination is weak and unlikely to be sustained at a hearing.