Employment Equity Act – Affirmation Action Policy found unlawful

Employment Equity Act – Affirmation Action Policy found Unlawful

Employment Equity Act – Affirmation Action Policy found unlawful in recent (SAHRC) published Equality Report. 

With Employment Equity report submissions looming, Employment Equity is on all designated employer’s to-do lists.

Numerous sources are reporting that the Employment Equity targets will only become more stringent and the non-compliance stick only longer. 

However, what is not being so widely being reported on and published, is the recent (SAHRC) published Equality Report which was submitted to Parliament.  Now, one could argue that this was over-shadowed by other pressing political issues like expropriation without compensation amongst others, be that as it may, this is a very important report that needs attention.

What this report is effectively saying, is that the Affirmative Action policy, is unlawful, not only measured by international standards, but by our very own Constitution.  This is a known fact to any person with knowledge of these two pieces of legislation, but this is now the first time that this matter is properly addressed.

Without setting out the legal arguments behind this, what should be noted is that the SAHRC found that the Employment Equity Act does not comply with our Constitution, and not with the United Nations International Convention on the Elimination of All Forms of Racial Discrimination.  The current definitions of “designated groups” as well as the breakdown of data into racial categories, does not comply with constitutional or international legal obligations.  There should be looked at socio-economic needs.

It was found that the current implementation of affirmative action may amount to “rigid quotas” and “absolute barriers” which may lead to “new economic imbalances and patterns of exclusion based on race, ethnicity, gender and disability”. 


A question was posed as to for how long special remedial measures should apply – it has been 20 years now – and it is trite law that special measures cannot be permanent.

Would it become a bit easier for minority parties to find employment?  It is prudent that Employers make informed decisions when recruiting employees, and take all factors into account in employing new staff, which would mean that yes, minority parties are supposed to find suitable employment easier.

The recommendation of the SAHRC is binding, and government cannot merely dismiss this.  It is however extremely unlikely that the ruling party will relax or let go of their race-based system of affirmative action, which entails that organs of state will not embrace the SAHRC’s findings or recommendations.  The Department of Labour, Commission for Employment Equity and the Department of Justice and Constitutional Development were given 6 months from July 2018, on steps taken to amend the Employment Equity Act in its current form. 

Solidarity announced that they will approach the courts for an explanatory order for clarity on how employers should deal with this situation until such time that the Employment Equity Act is amended.  In the interim, be very mindful of making new appointments based solely on an affirmative action policy.

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