Employment Equity Alliance: briefing

Social Development

21 July 1998
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Meeting report

PORTFOLIO MEETING ON WELFARE

WELFARE PORTFOLIO COMMITTEE
22 July 1998
EMPLOYMENT EQUITY ALLIANCE: BRIEFING

Documents handed out
Employment Equity Alliance: submission on the Employment Equity Bill (Appendix)

Mr Zacky Achmat (director of the National Coalition for Gay & Lesbian Equality and a founding member of the Employment Equity Alliance) and Ms Mary Caesar (Aids Legal Network) represented the Employment Equity Alliance.

Mr Achmat said that Employment Equity Alliance.made the following recommendations to the committee with regard to the Employment Equity Bill:
It should enable employment for disabled persons
It should remove discrimination against gay and lesbians in the workplace
It should improve the status of black women and in this regard, "black woman" referred to Africans, coloured and Indian women
It should enable employment for people with the HIV virus.

According to Mr Achmat, disabled people in South Africa are very supportive of the Bill but want to see change within specified time periods, for example, change should be evident within the next two to three years. He said black women are the most discriminated against , and that the Bill will be "toothless" without any monitoring thereof. It is felt that there should be a strong civil society voice and therefore women and disabled persons should form the basis of this regulatory committee. He noted that person with HIV should also be regarded as a disabled person. Mr Achmat also made the recommendation that gay people should have the right to social security. At the moment the Bill leaves out the term "spouse" and according to him this is a mistake as it is inconsistent with the general trend and may also be inconsistent with any legislation that may follow.

Mary Caesar stated that the Aids Legal Network tries to inform lawmakers about the reality of HIV and AIDS. HIV does not equal full-blown AIDS. She made the following recommendations:
- HIV should be regarded as a disability and therefore it is felt that the term disability in the Bill is too narrow. The appeal is made to expand the definition of disability, thus including HIV as a disability. In doing so it will be an easier task for employees to say the employer is discriminating against him/her because of HIV.
- It is noted that the Bill makes provision for fair discrimination such as, in the case of the affirmative action policy or if the job specifically requires a man or woman . The recommendation is made that the Bill should not justify that failure to employ an HIV person is fair discrimination.
- Section 7 of the Bill deals with the medical testing of employees. It is felt that this section is very broad. These medical tests includes any test, questions or inquiry. The recommendation made here is that HIV testing in particular must be excluded as it deliberately prevents an HIV person from being employed. If pre or post employment testing is allowed, approximately three million will be unemployed and these people will have to rely on government grants. Therefore there is an economic responsibility to keep HIV people economically stable.

Questions by committee members:
Mrs Malan (NP): It looks as though HIV may be a favourable "condition" to secure employment. For example a white male who is desperate for work, might falsely state that he is HIV positive, how would the employer know that this is true without a medical test?

Mary Caesar's response: With regards to medical testing, it is not used to see if people are telling the truth but rather it is used to discriminate against people. These tests are expensive and this money could be used to educate people about AIDS or HIV instead of discriminating against them.
Mr Achmat stated that affirmative action should not be used to force employers to employ HIV persons rather the aim is to avoid employers from discrimination against these people because of their disability.

Mr George (NP): With regard to insurance companies, how does this recommendation of employing HIV-positive people affect these companies and employee benefits?

Mr Achmat's response: It is recognised that there are risks with regard to HIV. However some insurance companies have policies for HIV persons. It is crucial that there are rational policies to support economic growth. Futhermore any employee could die as the result of a car accident, heart disease, cancer etc. HIV is not the only risk facing insurance companies.

A committee member asked what if a person did not qualify for the job that s/he has been interviewed for, but uses AIDS discrimination as the reason for being not offered the job. As an employer how do you protect yourself?

Mary Caesar : This person will have to prove (like in any other discriminatory case) that somewhere during the interview information was provided informing the employer that s/he has AIDS/HIV. These recommendations are not saying that people with HIV must be promoted because of their disability. It is merely made to protect these people against unfair or illegal discrimination, and this means that HIV should not be the sole reason why a person is not employed.

A committee member expressed his agreement with regard to excluding HIV medical tests. The HIV test serves no purpose and the only persons that should be tested are surgeons, dentists, and sex workers and this is where it should stop.

Another committee member was not satisfied with HIV being termed as a disability and he asked for the definition of disability. Mr Achmat answered that HIV is indeed a disability because it is physical impediment. He said it is a virus that slowly destroys the immune system and one’s condition could worsen if it is not properly treated. He stressed that it should be seen as disability with regard to discrimination and not to affirmative action.

Mrs Malan asked would it not be easier to include a clause in the Bill that says that there should be no discrimination against people with HIV?

Mr Achmat replied that he would be pleased as long as there is a protection for HIV people. He appealed to the committee members not just to wear red ribbons but to do something about HIV/AIDS.

Appendix: Employment Equity Alliance: submission on the Employment Equity Bill

THE EMPLOYMENT EQUITY ALLIANCE

SUBMISSION ON THE EMPLOYMENT EQUITY BILL

19 JULY 1998

EXECUTIVE SUMMARY

The Employment Equity Alliance (EEA) urges Parliament to effect at least the following limited amendments and recommendations to the Employment Equity Bill (EEB).

A. SET EMPLOYMENT TARGET TIME-FRAMES FOR PEOPLE WITH DISABILITIES

The EEA welcomes the purposes of the Employment Equity Bill which will prohibit unfair discrimination and promote affirmative action. The economic empowerment of persons with disabilities is central to this aim. Through the inclusion of persons with disabilities, South Africa will extend the full and equal benefits of citizenship to the poorest and most marginalised sections of our communities.

The EEA asks that Parliament takes full cognisance of the submissions of Disabled People South Africa (DPSA) and all the organisations of persons with disabilities.

We support the DPSA proposal that time-frames for targets relating to the employment of people with disabilities be set in the EEB.

B. DEFINING HIV AS A DISABILITY FOR UNFAIR DISCRIMINATION

Parliament is requested to amend section 6 of the EEB by including a new subsection which defines HIV expressly as a disability for the purposes of the chapter on the prohibition of unfair discrimination. Persons with HIV/AIDS frequently face exclusion from employment, many are tested without their consent and others encounter unreasonable limits to medical aid, pensions, and other employment benefits. To effect this amendment, the EEA also endorses the submissions of the AIDS Law Project, the National AIDS Convention of South Africa, the National Association of People Living with AIDS/HIV, the AIDS Consortium and the AIDS Legal Network and all organisations representing the rights of persons with HIV/AIDS. Section 6(1) of the EEB could be amended to introduce a new sub clause which reads:

"The Human Immuno-Deficiency Virus (HIV) will be regarded as a disability for the purposes of this chapter".

C. THE STATUS OF BLACK WOMEN

The EEA recommends that Parliament takes cognisance of the submissions from women’s organisations on the status of black (African, Coloured and Indian) women and their recommendation that black women form a designated group for the purpose of analysing equitable representivity of black women and disabled black women in employment. See Section 41 of the EEB. This will take into account the intersectionality of designated groups. We draw your attention to the submissions of the Tswaranang Legal Advocacy Centre to end Violence Against Women, the Community Law Centre Women and Human Rights Project (UWC), the CALS Gender Research Project, People Opposing Women’s Abuse, the Commission on Gender Equality and the National Association of Democratic Lawyers.

D. MONITORING, ENFORCEMENT AND REPRESENTIVITY

In addition, we raise the challenges of monitoring and enforcing the EEB and ask Parliament to consider whether it is satisfied with the limited enforcement mechanisms currently proposed? In our view, the enforcement mechanisms are not adequate to the vision and tasks of the EEB and need to be reinforced. The EEA proposes that all parties who nominate members to serve on the Commission must include a majority of members from designated groups in their nomination lists. Specifically, that it requires the Minister to ensure that the Employment Equity Commission includes at least a majority of black people and women, and, a significant number of people with disabilities. In this regard, the EEA will endorse the position of the Human Rights Committee and the National Association of Democratic Lawyers (NADEL).

E. DEFINITIONS OF FAMILY AND PARTNER

The rules and regulations of many employers and benefit providers include discriminatory definitions which have been used to define beneficiaries. These terms include single, married, dependant, marital status, husband, wife, spouse, family, divorced, divorcee, widow, widower and household. The current definitions are problematic because they exclude partners of employees in non-marital relationships. As a result, they exclude lesbian and gay partners and a wide range of unmarried heterosexual families and their dependants from most employment benefits.

The EEA refers Parliament to the submission of the National Coalition for Gay and Lesbian Equality which calls for a broad definition of the terms "family" and "partner". The EEA endorses this definition. We recommend that the definition of "family responsibility" in Section 1 amended to become more inclusive—as it stands it excludes "spouse" or "partner". A further definition of "partner" should be included in Section 1 of the EEB.

PROPOSED AMENDMENT TO DEFINITION OF FAMILY RESPONSIBILITY

The EEA recommends that Parliament includes the following amendments to Section 1 of the EEB:

"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.

INTRODUCTION

1. The Employment Equity Alliance1 2 ("EEA") is a broad formation of civil society organisations working in different sectors. These include the disability, gender equality, racial equality, HIV/AIDS, labour service, lesbian and gay equality, and legal and human rights sectors.

2. The EEA supports workplace equity for all but in particular for workers who belong to the sectors represented in the EEA. Its work includes lobbying parliament, government, business, civil society and labour bodies for the entrenchment of equality and the removal of unfair workplace discrimination against women, black people, disabled people, people living with HIV/AIDS and lesbian and gay employees. The EEA seeks to achieve these objectives by supporting the Employment Equity Bill (EEB). Some members of the EEA have commented on previous drafts of the Bill before the formation of EEA and will make further submissions on their specific sectoral needs.

3. As an alliance, the EEA congratulates the Minister and Department of Labour for their vision in this Bill. We commend business and labour for reaching speedy agreement at NEDLAC on the provisions of the EEB. If passed by Parliament, the EEB will represent the most significant piece of legislation since the Constitution to address the issues of equality and economic empowerment.

4. The Employment Equity Alliance (EEA) urges Parliament to effect at least some the following limited amendments and recommendations to the Employment Equity Bill (EEB) stipulated below on the following constitutional and legal grounds.

5. The Constitution of the Republic of South Africa (Act 108 of 1996), the Labour Relations Act3 ("the LRA") and Employment Equity Bill (Government Gazette Vol. 1390 No. 18481) constitute the basic legal framework for the elimination of unfair discrimination in employment4.

The Constitution

6. Section 9 in the Bill of Rights provides that neither the State nor any person:

"may unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth."

The Labour Relations Act

7. Through a transitional schedule, the LRA seeks to prevent unfair discrimination in the employment context. It provides that an unfair labour practice means any unfair act or omission that arises between an employer and an employee, involving the unfair discrimination, either directly or indirectly, against an employee on any arbitrary ground, including, but not limited to the grounds listed in paragraph 6 above.5

8. The LRA also states that a dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against an employee, directly or indirectly, on any arbitrary ground, including, but not limited to the grounds listed in paragraph 6 above.6

UNFAIR DISCRIMINATION IN THE EEB

9. In giving effect to the legal and constitutional obligations of equality and fair labour practices required by the Constitution and the International Labour Organisation, the EEB will provide legal clarity to employers, workers and civil society on the requirements for affirmative action and the elimination of unfair discrimination without undue penalties. It is a fair and legally enforceable piece of legislation.

10. The EEA endorses the following provisions of the EEB which state that any "employment policy or practice" which is unfair should be eliminated (section 5). Further, the Bill stipulates that no person may unfairly 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. (section 6(1))

11. "Employment policy or practice" is defined to include most of the areas of any employment contract including job access, job security and career development opportunities (section 1). Unlike the sections dealing with affirmative action (which are limited to designated employers), the prohibition of unfair discrimination covers all employers (other than the SANDF and NIA) and job applicants.

A. DISABILITY AND THE EMPLOYMENT EQUITY BILL

The EEB is the first national legislation which supports the economic empowerment of persons with disability. Persons with disabilities were historically excluded from the benefits of full citizenship based on the paternalistic and sometimes noble perceptions of care, charity, trusteeship, pity and rehabilitation.

The constitutional prohibition of unfair discrimination based on disability is a simple but revolutionary reversal of that perception. Its fundamental premises are dignity and equality and it recognises that persons with disabilities are part of society and thus have a civil right to participate in the range of services, benefits, and employment opportunities that constitute our society. In regard to unfair discrimination and reasonable accommodation, the EEA asks Parliament to take cognisance of the submissions of the Community Law Centre Women and Human Rights Project.

The government has endorsed the United Nations Standard Rules for the Equalisation of Opportunities for Persons with Disabilities and the World Programme of Action Concerning Disabled Persons. Further, the government has committed itself to an integrated strategy aimed at eliminating discrimination, poverty and paternalism towards an integrated programme which recognises the autonomy, rights and human resource potential of persons with disability. Studies have shown that fewer than 30% of persons with disabilities in South Africa are economically active and that fewer than 1 in every 100 persons with disability participate in the open labour market. (See the Integrated National Disability Strategy a White Paper issued by the Office of the Deputy President in November 1997)

Securing access to employment for persons with disabilities is an integral part of the EEB. This is covered by the prohibition of unfair discrimination in sections 5 and 6 of the Bill. And, it is appropriate that the Bill confines itself to the employment context. Broader equality legislation should deal with access to public accommodation, goods and services. Social welfare legislation should deal with social assistance needs which arise from any incapacity which is not employment related.

Through the inclusion of persons with disabilities as a designated group for purposes of affirmative action South Africa will extend the full and equal benefits of citizenship to its poorest and most marginalised sections of our communities. In this regard the EEA asks that Parliament takes full cognisance of the submissions of Disabled People South Africa and all the organisations of persons with disabilities. We support the DPSA proposal that time-frames for targets relating to the employment of people with disabilities be set.

The EEA endorses the status of people with disabilities as a designated group for affirmative action on the grounds that it is unjustifiable and a human rights violation that only 1 in every 100 persons with a disability has a job on the open market. (see Notes to the EEB in GG No. 18481 p.11)

HIV AND DISABILITY

The EEB does not directly and expressly refer to the human immuno-deficiency virus (HIV) in its sections on unfair discrimination or in the section on medical testing. In April 1998, the South African Law Commission published its Second Interim Report on Aspects of the Law Relating to AIDS on the subject of Pre-employment HIV testing. This comprehensive and well-researched report is the final product of extensive consultations with government, labour, business, health workers, HIV/AIDS organisations and civil society. The South African Law Commission recommends that the government should "prohibit testing where it constitutes unfair discrimination and an unfair labour practice" in order to create legal clarity. Crucially, the Commission recommended that "legislation prohibiting HIV testing in the workplace should be accessible and enforceable." (pp:vii-ix) Parliament has the power to ensure that poor people are not forced to litigate unnecessarily. Avoiding costly litigation is less wasteful of tax-payers money and the human and economic resources of poor people than making the intention of the legislature clear . This can be done if Parliament expressly defines HIV as a disability.

The Commission further agreed that legislation need not be HIV/AIDS specific if it can achieve the objectives of prohibiting pre-employment HIV testing. To this end, the Law Commission accepted the Department of Labour’s proposals that a statute prohibiting pre-employment HIV testing should form part of the "broader labour legislation framework", specifically that it be "integrated into the Employment Equity Bill." The EEA endorses this approach.

The purpose of the EEB is to promote equality and to eliminate unfair discrimination in employment. In The Draft Report of the National Economic Development and Labour Council on the Employment Equity Bill (21 May 1998), the social partners agreed that the provision on medical testing should "not undermine the purpose of the Bill." The EEA agrees but draw your attention to the fact that "integration" does not mean "elimination".

The section on medical testing could have the effect of outlawing pre-employment HIV testing if read with section 6 of the EEB. Medical testing is defined in the EEB as:

any test, question, inquiry or other means designed to ascertain or which has the effect of enabling an employer to ascertain, whether an employee has ANY medical condition;’ (our emphasis)

This definition of testing could avoid the pitfalls of "immune monitoring" and other non-specific HIV related questions or tests. Especially, if HIV is expressly defined as a disability for the purposes of Chapter 2 and in particular section 6 of the EEB.

22. The EEB does not explicitly prohibit HIV testing and section 7(b) is too vague and may be exploited by employers (who do not wish to comply with their legal and constitutional obligations) to deny protection to job applicants with HIV. At present this section reads:

Medical testing of an employee is prohibited, unless it is justifiable in the light of medical facts, employment conditions, social policy, the fair distribution of employee benefits or the inherent requirements of the job.

As it stands, this section does not provide legal clarity to employers or employees with HIV.

LIFE EXPECTANCY AND PRODUCTIVITY OF PERSONS WITH HIV/AIDS

The EEA recommends that the government and Parliament explicitly protect the 2.5 to 3 million people living with HIV in South Africa. Explicit inclusion of HIV is essential for the following reasons. A person with HIV is as fit and healthy as any other job applicant and can live a productive and healthy life for 5-15 years. Recent medical breakthroughs have assisted in the reduction of HIV viral load in an infected person and assisted in improving the quality of life and even life-expectancy of persons with HIV/AIDS. Not only people who can afford the expensive medications (R4 000.00 per month) have hope. People who do not have access to expensive medication can also live a productive and healthy life before developing AIDS and becoming ill—this is acknowledged by the SA Law Commission in its Second Interim Report (May 1998 page 10)

The most significant comment from a business-oriented body—The Actuarial Society of South Africa stated to the Law Commission that "it is in the public interest that persons with HIV remain productive within the economy for as long as they are capable of performing an occupation for financial gain." (pp136-7)

NON-DISCRIMINATION AND EQUALITY

A non-discriminatory approach to HIV/AIDS is constitutionally necessary and will assist with prevention efforts. Unlike any other life- threatening condition HIV/AIDS already affects millions of people in our country. It is unlikely that a single workplace can escape the effects of HIV/AIDS. Yet, the majority of people who know they have HIV remain silent because of fears of discrimination. Parliament has a duty to encourage openness and voluntary disclosure. This can only be done by creating an enabling environment that promotes non-discrimination. To deny persons with HIV employment will undermine South Africa’s commitment to equality and non-discrimination. It will stigmatise people with HIV/AIDS and drive the disease further underground. This position was supported by the South African Law Commission in its Second Interim Report.

In practice it has been shown that non-discrimination is not only a human rights imperative but also technically a sound strategy for ensuring that persons with HIV are not driven underground, where they are inaccessible to education programmes and unavailable as credible bearers of AIDS prevention messages for their peers. The effect of discrimination is also to alienate. People living with HIV are often members of already stigmatised groups [racial, ethnic and sexual minorities] who experience discrimination and who may suffer lower self-esteem and reduced motivation to make sustained and responsible behaviour change. Fear of discrimination is a significant impediment to persons coming forward for counselling, testing, support and treatment. Therefore upholding human rights principles assists public health efforts to protect the health of the whole community in promoting individual behaviour change necessary for a reduction in infection rates. Pp27-28

This approach is supported by the World Health Organisation, the United Nations Guidelines on HIV/AIDS and Human Rights, the NACOSA National AIDS Plan and the International Labour Organisation. (See discussion pp 78-82 Second Interim Report)

IS HIV TESTING EVER JUSTIFIED FOR EMPLOYMENT?

The South African Law Commission accepted medical and scientific facts which hold that in most "occupations [with very limited exceptions] there is no danger of occupational transmission of HIV or of opportunistic infections associated with AIDS." Even employer bodies such as Business South Africa and SACOB who opposed specific legislation prohibiting HIV testing recommended against pre-employment HIV testing in their own policies. Bodies such as the Afrikaanse Handels Instituut acknowledged the internationally accepted norm "that the most effective means for employers to protect against transmission of HIV in the workplace is to implement universal infection control measures." (p51)

HOW CAN LEGISLATION AFFECT BENEFIT SCHEMES?

HIV/AIDS will impact seriously on the entire economy. But denying persons with HIV employment will not decrease the economic costs of the disease. In fact, as we learnt with apartheid, discrimination carries its own social and economic costs. Medical aid societies, provident funds and group life assurance are among the benefit schemes that will feel the impact. Individual employers are facing a loss in productivity, trained labour, and, our society is losing valuable human resources and income from the economically active because of HIV/AIDS. State and private health-care costs are already affected. But exclusion and pre-employment testing for HIV will not protect benefit schemes. To exclude as many as 25% of the economically active population from employment and related benefits will place an unfair burden on the state and individual tax payers. This will harm small businesses more than a rational response which shares responsibility between the major stake-holders. Employers, the government, the labour movement, individuals, the HIV/AIDS NGOs all have a duty to ensure that people with HIV/AIDS remain productive for as long as possible to contribute economically to their households and to society. This is the only way that the negative economic impact of HIV/AIDS can be contained.

In their evaluation of the comments of business organisations on the economic impact of legislation which allow people with HIV the equal right to work, the South African Law Commission concluded that:

the costs of the epidemic will not be contained by simply excluding persons with HIV from the workforce. Thus an approach based on exclusionary principles would not reduce or remove the costs - it would simply displace them. (p144)

WHY HIV SHOULD BE DEFINED AS A DISABILITY?

The EEA recommends that section 6(1) of the EEB be amended by introducing a new sub clause which reads: "The Human Immuno-Deficiency Virus (HIV) will be regarded as a disability for the purposes of this chapter". Expressly defining HIV as a disability for purposes of unfair discrimination achieves the purpose of including employees with HIV without placing an affirmative action target on employers or allowing for unlimited benefit claims. Further, the general medical testing provision in section 7(b) will then explicitly include HIV without a separate mention. The limited and express definition of HIV as a disability will also cover a range of employment policies and practices which could be the subject of a Code of Good Practice. Section 53 of the EEB empowers the Minister of Labour to issue, change or replace a Code of Good Practice on any employment issue relating to the EEB.

The Southern African Development Community (SADC) Council of Ministers adopted a Code on HIV/AIDS and Employment which recommends that "there should be no direct or indirect pre- employment test for HIV." This Code adopts a rational and non- discriminatory stand on employment benefits, job security and career development opportunities which protects the rights of persons with HIV/AIDS and does not place unfair economic burdens on employers. The adoption of the Code places an obligation on member states, including South Africa, to adopt national legislation to give effect to the Code. (See the Law Commission’s Second Interim Report p79).

In addition, expressly defining HIV as a disability will follow other jurisdictions such as Canada, Australia and the United States. Belatedly and after 17 years of an epidemic, on 25th June 1998, after thousands of cases in its lower Courts had to prove that HIV constituted a disability in terms of the Americans with Disabilities Act, the United States Supreme Court finally ruled that HIV constituted a disability. This waste of lives and money could have been avoided if the AIDS phobia of the US legislature was not simultaneously an expression of deep-seated homophobia and if the ADA expressly included HIV in its schedule. Now, the US Supreme Court has settled the definition:

In light of these facts, HIV infection must be regarded as a physiological disorder with a constant and detrimental effect on the infected person’s hemic and lymphatic systems from the moment of infection. HIV infection satisfies the statutory and regulatory definition of a physical impairment during every stage of the disease. (CaseNo. 97-156: Bragdon v. Abbott not yet reported, sourced from the Internet).

32. A major employer body, the South African Chamber of Commerce also endorses the stand that HIV should be defined as a disability. The Law Commission reports that:

Sacob believes it is preferable to define HIV/AIDS as a disability so that it will be covered under the LRA. They submit that this would be in line with international practice since few countries have HIV/AIDS legislation of the type contemplated. (See the Law Commission’s Second Interim Report p.133)

The EEB provides Parliament with an unique opportunity to pass the first positive legislation on HIV since the epidemic began more than 17 years ago. Crucially, to include HIV expressly as a disability for the purposes of unfair discrimination will promote a non-discriminatory environment and assist in the HIV prevention efforts of government, civil society and employers. The law would be clear and persons with HIV will be protected against unfair discrimination in all employment policies and practices. To effect this amendment, the EEA also supports the submissions of the AIDS Law Project, the National AIDS Convention of South Africa, the National Association of People Living with AIDS/HIV, the AIDS Consortium and the AIDS Legal Network.

C. BLACK WOMEN AND THE STATUS OF WOMEN AS A DESIGNATED GROUP IN THE EEB

34. Women represent the majority of South Africa’s population but they constitute fewer than 15% of top and middle managers. In addition, the majority of senior women managers in companies are white women. At middle management fewer than 20% of managers are black women. (See the previous draft of Employment Equity Bill GG No. 18481)

35. Black women bear the brunt of gender oppression, racial discrimination and economic inequality. Often, African women living under customary law and poor women in all religious communities lack the economic independence to assert their constitutionally guaranteed right to equality. The question arises whether the designated categories would allow employers to employ black men and white women to fulfill their affirmative action targets at the expense of black women. Such an approach would cause further division among women and allow employers to subvert the intentions of the EEB which are to overcome the social and economic legacies of apartheid.

36. The EEA recommends that Parliament takes particular cognisance of the submissions from women’s organisations on the status of black (African, Coloured and Indian) women and their recommendation that black women form a designated group for the purpose of analysing equitable representivity of black women and disabled black women in employment. (See Section 41 of the EEB.) This will take into account the intersectionality of designated groups. We draw your attention to the submissions of the Tswaranang Legal Advocacy Centre to end Violence Against Women, the Community Law Centre Women and Human Rights Project (UWC), the CALS Gender Research Project, People Opposing Women’s Abuse, the Commission on Gender Equality and the National Association of Democratic Lawyers.

D. ENFORCEMENT MECHANISMS IN THE EEB

37. The EEA submits that the challenges of monitoring and enforcing the EEB are daunting and we ask Parliament whether it is satisfied with the limited enforcement mechanisms currently proposed? Employers have the social and economic power to evade the meagre monitoring and enforcement mechanisms created by the EEB. The EEA recommends that the monitoring and enforcement mechanisms in the EEB be strengthened to avoid that its vision is subverted.

38. The EEA proposes that all parties who nominate members to serve on the Commission must include a majority of members from designated groups in their nomination lists. Specifically, that it requires the Minister to ensure that the Employment Equity Commission includes at least a majority of black people and women, and, a significant number of people with disabilities. In this regard, the EEA will endorse the position of the Human Rights Committee and the National Association of Democratic Lawyers (NADEL).

E. DEFINITIONS OF FAMILY AND PARTNER

39. The rules and regulations of many employers and benefit providers include discriminatory definitions which have been used to define benefit beneficiaries. These terms include single, married, dependant, marital status, husband, wife, spouse, family, divorced, divorcee, widow, widower and household. The current definitions are problematic because they exclude partners of employees in non-marital relationships. As a result, they exclude lesbian and gay partners and a wide range of unmarried heterosexual families and their dependants from most employment benefits.

40. Unfair denial of these benefits constitutes a violation of the Constitution and existing labour legislation. Benefits comprise substantial portion of income and savings of employees. The denial of these benefits to unmarried or gay and lesbian partners means that these employees receive substantially less benefits than do their heterosexual married colleagues.

41. South African Courts have ruled that equality is a cornerstone of the new democracy and despite the dearth of non-discriminatory sexual orientation jurisprudence, three divisions of the High Court of South Africa have ruled that lesbian and gay people deserve equal protection. In the case of the National Coalition for Gay and Lesbian Equality and Another v The Minister of Justice and two others (Case No. 97/023677 WLD) Justice Heher stated that

Constitutionally we have reached a stage of maturity in which recognition of the dignity and the innate worth of every member of society is not a matter of reluctant concession but is one of easy acceptance. ... This is not to suggest that there has ever been a reason to behave otherwise save for the usual impediments to all kinds of human progress such as religious intolerance, ignorance, superstition, bigotry, fear of what is different from or alien to everyday experience and the millstone of history. The Constitution enjoins equal protection before the law of persons entitled to its protection. That excludes individual or class discrimination. To penalise a homosexual person for the expression of his or her sexuality can only be defended from a standpoint which depends on the baneful influences to which I have alluded. (Case No. 97/023677 WLD—Judgement delivered 8 May 1998)

42. Judge Heher found support in the decision of Judge Farlam and Judge Ncgobo who declared sodomy unconstitutional in the Cape High Court because they regarded it as "unfair discrimination" on the basis of sexual orientation:

It is difficult to see how any discrimination which has already been stigmatised as "unfair" (which is what I consider the present discrimination to be) can ever be regarded as permissible to the extent that it is reasonable and justifiable in an open and democratic society based on freedom and equality. (S v Kampher CPD Case No: 232/97)

DEFINING UNFAIR DISCRIMINATION

43. In Prinsloo v Van der Linde, the Constitutional Court defined "unfair discrimination in the following manner:

Given the history of this country we are of the view that "discrimination" has acquired a particular perjorative meaning relating to the unequal treatment of people based on attributes and characteristics attaching to them. We are emerging from a period in our history during which the humanity of the majority of the inhabitants of this country was denied. They were treated not as having inherent worth: as objects whose identities could be arbitrarily defined by those in power rather than as persons with infinite worth. In short they were denied their inherent dignity. ... In our view unfair discrimination ... principally means treating people differently in a way which impairs their fundamental dignity as human beings, who are inherently equal in dignity. (Prinsloo v Van der Linde 1997 (3) SA 1012 (CC) at 1026C-F)

The EEA is satisfied that this definition of unfair discrimination settles the legal definition of unfair discrimination and that it will be the standard applied by the judiciary in developing employment equity jurisprudence.

44. Statutory discrimination in the employment rights and family life of lesbian and gay people in South Africa debases their relationships, self-esteem and lives. Even though the Minister of Safety and Security has acted on the advice of the Police Medical Aid (Polmed) heads to appeal the decision in the case of Langemaat v Minister of Safety and Security and two others (Case No. 19077/97 4th February 1998), Judge Pierre Roux of the Pretoria High Court held that:

I would ignore my experience and knowledge of several same-sex couples who have lived together for years. The stability and permanence of their relationships is no different from the many married couples I know. Both types of union are deserving of respect and protection. If our law does not accord protection to the type of union I am dealing with then I suggest it is time it does so. (Langemaat v Minister of Safety and Security and two others (Case No. 19077/97 4th February 1998)

DEFINITIONS OF MARITAL STATUS DISCRIMINATION

45. Judge Roux’s reasoning on lesbian and gay relationships should be extended to cover unmarried heterosexual people. In Harksen v Lane, Judge Kate O’ Regan, though dissenting from the main judgement, agreed with the majority’s view that "discrimination on the basis of marital status touches the essential dignity and worth of the individual":

I agree that marital status is a matter of significant importance to all individuals, closely related to human dignity and liberty. For most people, the decision to enter into a permanent personal relationship with another is a momentous and defining one. It requires related decisions concerning the nature of the relationship, and its personal and propietary consequences. (Harksen v Lane NO and Others 1998 (1) SA 300 (CC) see paragraphs 337D-I)

The EEA endorses Judge O’ Regan’s view that the criteria for any relationship, married or unmarried, should take into account the personal and proprietary consequences of any relationship be they married or unmarried, heterosexual or same-sex.

46. There can be little doubt that the framers of the Constitution aimed to recognise the worth and dignity of all human relationships based on freedom, equality and dignity. This is a decisive break with the past definitions of family as enforced under apartheid. As late as 1995, a UNISA family law textbook ignoring the Constitutional requirements on customary and religious marriages, as well as the equality provisions on gender, defined family as "blood relations" or "relations through marriage" and more narrowly as "a man, his wife and their children". Their definition of "marriage" still excluded African customary marriages and non-Christian religious marriages (Barnard, Cronje and Olivier The South African Law of Persons and Family Law (1995)Butterworths;p129)

47. In the Fraser case, the then Deputy President (now Chief Justice) Ishmael Mahomed stated that "family law" could no longer be based on "simplistic" distinctions between married and unmarried people because "in modern society stable relationships between unmarried parents are no longer exceptional." (Fraser v Children's Court of Pretoria North and Others 1997 (2) SA 261 at 272E-G)

48. The definition of family must be extended to include the diversity of family forms in South Africa and should give recognition to all marriages and all (non-marital) relationships of an intimate and committed nature. A definition should include the mutual obligation of support for the duration of such marriages or relationships. Therefore, the EEA endorses the submission of the National Coalition for Gay and Lesbian Equality.

PROPOSED AMENDMENT TO DEFINITION OF FAMILY RESPONSIBILITY

49. The EEA recommends that Parliament includes the following amendments to Section 1 of the EEB:

"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.

CONCLUSION

Notwithstanding the proposed amendments, the Employment Equity Alliance once again congratulates the government for its commitment to economic empowerment and participation of poor and marginalised communities. The Employment Equity Bill is a major step forward for black (African, Coloured and Indian) workers, women, disabled people, people living with HIV/AIDS and lesbian and gay employees. The EEB appropriately acknowledges the contribution of the labour movement and poor people to the struggle for democracy and equality for all in South Africa.

Prepared by the Employment Equity Alliance.

The list describing activities of EEA members are attached as an appendix.

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