Employment equity and elimination of discrimination: Where are women with disabilities in the hierarchy?

abstract

To remedy the structural and systemic socio-economic effects of apartheid, colonialism and patriarchy, South Africa’s constitutional legal framework provides creative remedies through anti-discrimination and employment equity (affirmative action) legislation to promote equal participation of women with disabilities in the workplace. In an Equality Court hearing, Singh, an applicant for a position of magistrate, argued that she was excluded from being short-listed ostensibly because as a partially blind woman, she would be unable to meet the requirement of a valid driver’s licence. Her disability status was not considered in applying the short-listing criteria. Singh successfully challenged the discrimination inherent in the short-listing process in Singh v Minister of Justice and Constitutional Development and Others (SA National Council for the Blind and another as Amici Curiae). The Equality Court ordered the Magistrate’s Commission to revise its criteria for short-listing in the appointment of magistrates to reflect the necessary racial and gender composition in appointments in the judiciary as well as to have regard for the need to promote persons with disabilities in its short-listing and appointment processes. The article will consider the relationship between race, gender and disability in employment equity (with emphasis on gender and disability) against the backdrop of the Singh case. It outlines the monitoring roles of two constitutional watchdogs: the Commission for Gender Equality (CGE), and the South African Human Rights Commission (SAHRC); and the enforcement role of the Commission for Employment Equity (CEE), in promoting equal workplace participation. The analysis of the Singh case and the greater legislative scheme can be used for employees and employers generally in understanding not just the importance and need for advancement of persons with disabilities in the workplace, but also in how this category of employees is considered in the hierarchy of other transformational grounds, such as race and gender and why it is not subordinate to those statuses. The article argues for a fuller notion of diversity, than mere representivity in employment equity, which would necessitate transforming current notions of “able-bodied and able-minded” norms within workplace processes of recruitment, appointment and retention practices. It recommends accountability fostered by the monitoring of state compliance by the Chapter Nine institutions, as well as strategic litigation to challenge state and non-state inaction or omissions.

keywords:

• disability
• discrimination
• employment equity
• representivity
• monitoring

Notes

1. Chapter Nine institutions (such as the South African Human Rights Commission) and the public administration must also adhere to the principle of representivity, in terms of sections 193(2) and 195(l)(i) of the Constitution, respectively.

2. Malan (2010) notes there were about 47 separate statutory enactments which regulated representivity in the boards of a range of public bodies in 2010.

3. PEPUDA applied in this instance, and not the Employment Equity Act, because the Magistracy is not an ‘employer’ under the Employment Equity Act.

4. Article 1 of the CRPD (UN, 2007) defines “persons with disabilities” as:

persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairment which in interaction with various barriers may hinder their full participation in society on an equal basis with others.

5. The revised Code (Republic of South Africa, 2015:10) has inserted in clause 5.1 the definition of “Discrimination on the basis of disability”:

any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation.

The definition of “Persons with disabilities” in clause 5.2 includes:

those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.

6. The CGE has reported on its public hearings on employment equity in seven of the nine provinces. Reports on the findings of the hearings in KwaZulu-Natal and Mpumalanga is still awaited.

7. See http://www.bdlive.co.za/articles/2012/01/12/policy-on-disabled-magistrates-challenged, site accessed 1 February 2016; http://www.timeslive.co.za/local/2012/01/16/justice-seen-to-be-done, site accessed 1 February 2016.

8. The numerical goal of 2% employment of persons with disabilities was set in the White Paper on the Transformation of the Public Service (Republic of South Africa,1995) but the White Paper on Affirmative Action (Republic of South Africa,1998) qualifies this as merely being a baseline since this target is still below the 5% of people with disabilities in society as a whole.

9. The Women’s Empowerment and Gender Equality Draft (2012) and final Bill (2013) were in part due to pressure on the South African government to give effect to its international law obligations to achieve gender equality, especially economically. For example, the Committee on the Convention for the Elimination of All forms of Discrimination Against Women (CEDAW) has noted their concern with the absence of dedicated gender equality legislation, specifically to prohibit discrimination on the basis of sex (CEDAW Committee, 2011). The Draft Bill was an attempt by the Minister of Women, Children and Persons with Disabilities to attain the lofty goal of gender parity in the corporate world. The bill faced extreme criticism (Agenda, 2013; Bliss, 2014). Although the revised version of the Bill (B50-2013) was passed by the House of Assembly, the Bill lapsed in 2014 at the end of the fourth parliament (Sabinet Law, 2015; Parliament, 2015). The Bill (B50-2013) was adopted, with amendments, by the National Council of Provinces and it is being reviewed pending consultations (Parliamentary Monitoring Group, 2014). The revised Bill contained provisions on inter alia equal representation and empowerment. Of note, is the draft provision (clause 12) dealing with socio-economic empowerment of women with disabilities, which aimed to task designated public and private bodies to develop and implement plans and measures for economic empowerment and meaningful participation in economic, social and cultural lives of women with disabilities to achieve progressive realisation of substantive gender equality. These were to include special measures to facilitate equal access to education and employment. Both the draft and revised Bills were slated for duplicating the mandates of various bodies, as well as duplication of policy and legislative measures, such as PEPUDA (Community Law Centre, 2014; Bliss, 2014).

Additional information

Notes on contributors

Willene Holness

WILLENE HOLNESS is a lecturer at the School of Law, University of KwaZulu-Natal where she teaches employment discrimination law, advanced constitutional law and child care and protection law at masters level, amongst other courses. Her special research interests lie in equal participation of persons with disabilities in society and the intersection between gender and the law. She holds a BA, LLB from Rhodes University and an LLM degree from the University of KwaZulu-Natal. Her LLD research focuses on the rights and responsibilities of mothers with intellectual disabilities and their access to justice in the Children's Courts.