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35 pt. 2 Indus. L.J. (Juta) 2623 (2014)
Protection against Unfair Discrimination: Cleaning up the Act

handle is hein.journals/iljuta39 and id is 933 raw text is: 











                           Protection against Unfair

   Discrimination: Cleaning up the Act?*

                                                       DARCY DU TOIT**


1   INTRODUCTION
   The Employment Equity Act' (EEA) is potentially one of the
most critical pieces of labour legislation in South Africa (SA), if not
the most critical. Countless disputes down the years - most recently
the Marikana massacre and the bitter platinum strike of 2014 - have
driven home one lesson above all: the toxic combination of racial and
class divisions nurtured under apartheid and manifested in extreme
social inequality2 remains a fundamental source of conflict, striking
at the roots of a 'society based on democratic values, social justice
and fundamental human rights' foreshadowed in the preamble to the
Constitution. There can be little doubt that the radical transformation
envisaged by the EEA4 would address the causes of this conflict more
profoundly than any of the regulatory or dispute resolution processes
created by other statutes.
   But all this is qualified by the word 'potentially'. Progress (or lack of
it)' towards equitable representation of black people, women and people
with disabilities at higher occupational levels remains extremely limited.
This raises the question of the (in)effectiveness of affirmative action
policies in the private sector especially, which falls beyond the scope of
this article.6 The present article is concerned with the second fundamental
objective of the EEA: the elimination of unfair discrimination, a duty
which is incumbent on every employer, designated or otherwise. Here


  * This article on the amendments regarding unfair discrimination flows from a chapter on
'Unfair Discrimination' which will appear in the forthcoming 6 ed of Du Toit et al Labour
Relations Law (LexisNexis) in January 2015.
  ** Emeritus Professor, Faculty of Law, University of the Western Cape.
  'Act 55 of 1998.
  'The gini coefficient for South Africa (SA), reaching 63.1 in 2009, is one of the highest in the
world. In Brazil, once on a par with SA, it has dropped to 54.7  World Bank Data: Gini Index
http://data.worldbank.org/indicator/SI.POV.GINIorder wbapi data value_2012+wbapi_
data value+wbapi data value last&sort asc.
  'The Constitution of the Republic of South Africa Act 108 of 1996.
  'Section 2 defines the purpose of the Act as the achievement of'equity in the workplace',
involving 'equal opportunity and fair treatment' for all through the elimination of unfair
discrimination as well as 'equitable representation' of black workers, women and people with
disabilities 'in all occupational levels in the workforce'.
  ' From 2008 to 2010 the percentage of Africans in top management positions actually
declined from 13.6% to 12.7%, while the percentage of whites increased from 72.8% to 73.1%
   Commission for Employment Equity Annual Report 2012-2013 (2013) 45.
   'See, more generally, the article by Shamima Gaibie entitled Affirmative Action: Concepts and
Controversies elsewhere in this issue.
  7s 5 of the EEA.


2623

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