Implications of the Employment Equity Act for the higher education sector

Transcription

1 SAJHE/ SATHO VOL 17 NO Implications of the Employment Equity Act for the higher education sector L M Portnoi* University of California, Los Angeles women and disabled people) to target first. leaving margin for interpretation in particular employment contexts. In the context of the Employment Equity Act. the term black refers to African. coloured and I ndian people. As mentioned above. Chapter III of the Act is entitled "Affirmative Action". and Section 15 states that all designated employers must design a plan that is based on an organisational analysis of barriers and contains affirmative action measures to work towards employment equity. Moreover. Chapter III. Section 20 requires that if a person from one of these three groups meets the minimum qualifications of the job or has the capacity to acquire the skills to do the job. he or she must be considered to be qualified for the job. The Act further states that the designated employer must provide training and skills development for affirmative action appointees to obtain the necessary skills or qualifications required for a position in the particular workplace. INTRODUCTION The South African Employment Equity Act (EEA) of 1998 is one of the most significant and contested pieces of legislation passed in the newly democratic South Africa. The EEA. which has drawn on the experiences of other countries. affects employers. employees and potential employees in significant ways. Chapter II of the Employment Equity Act deals with the elimination of unfair discrimination and affects every single employer in South Africa. regardless of the number of employees. Chapter III of the Act. entitled "Affirmative Action". applies to all types of "designated" employers of 50 or more employees. whether they are corporations. non-profit organisations. public institutions or universities. The Act is indeterminate on certain points. such as which of the three "designated" groups (blacks. Although the institution may in principle support employment equity. drafting an employment equity policy is extremely challenging. As a university or technikon often employs people with highly specialised skills (both in academic and technical or administrative sectors). which take an extended amount of time to acquire. the EEA presents a particular set of challenges and constraints for the higher education institution as an employer. This article discusses the background to the international debates around the development of employment equity and affirmative action policies and legislation. It also focuses on the situation of universities as designated employers in relation to the requirements of the Employment Equity Act. It argues that universities face a unique set of constraints and challenges with regard to employment equity - specialised higher education legislation and policy developments. the "pool" issue. funding and rationalization. universities as a unique workplace. and the individual legacies of universities. The central argument is that these specialised challenges constrain the Contact Person: Laura M Pannai. University af California. Los Angeles S Denker. Gardena. CA USA Tel < Ipartnai@ucla.edu > 79

2 ISSN space in which employment equity policies may be developed at higher education institutions in South Africa. AFFIRMATIVE ACTION AND THE DEVELOPMENT OF THE EMPLOYMENT EQUITY ACT Affirmative action and employment equity are complex terms. with many different meanings for different people and in different international contexts. Proponents generally regard affirmative action (and employment equity) as a positive measure or tool that empowers people who have been discriminated against in the past (particularly in the workplace). while opponents consider affirmative action and efforts toward employment equity to be discrimination in reverse. To some. especially in the popular context. affirmative action and employment equity are considered to be interchangeable concepts. The author would argue that affirmative action and employment equity are two distinct but related terms. Affirmative action is a positive. corrective tool to assist people who have been discriminated against in the past in obtaining employment and training. On the other hand. employment equity is a desired goal for employers and is a situation in which discrimination does not occur and the workforce is adequately trained and representative of the population. From this viewpoint. affirmative action is a strategy geared toward achieving employment equity. The development of affirmative action as a concept While there is some disagreement on exactly where and when the concept of affirmative action first emerged. most writers agree that modern affirmative action was a product of the civil rights movement in the United States of America (US). The civil rights campaign in the US took shape in the late 1950s and 1960s. The campaign constituted a struggle by ethnic minority groups in the US. primarily African-Americans led by Martin Luther King Jr. who endeavoured to end formal legislative discrimination and informal segregation and discrimination. However. the roots of the concept of affirmative action in the workplace may be traced back a bit further. During World War II. United States President Theodore Roosevelt issued an Executive Order to bar discrimination (mainly toward women and ethnic minority groups) in the federal government and in war industries. and established the first Fair Employment Practices Committee. However. after the war. the position of women and minorities deteriorated again. A 1995 US White House report on affirmative action notes that while the employment of African-Americans and women improved during World War II and while some efforts were made in the 1950s and 1960s. affirmative action did not "take hold until it became clear that anti-discrimination statutes alone were not enough to break longstanding patterns of discrimination" (Section 2.1). US President John F Kennedy is credited with coining the term affirmative action. In during the height of the civil rights movement. Kennedy created the Committee on Equal Employment Opportunity and issued Executive Order in which he first used the term "affirmative action" to refer to practices aimed at assisting women and ethnic minorities who had historically been discriminated against. Though affirmative action initially pertained only to federal government positions or to companies with government tenders or funding. by the time Kennedy was assassinated. he had begun legislating a Civil Rights Bill. which included an expansion of the Equal Employment Opportunity committee. In the Civil Rights Act was passed under President Johnson's' tutelage. and Title VII of the Act sought to end discrimination in all public companies. regardless of whether or not they had federal funding or contracts. The Johnson era Act bolstered and expanded the legislation begun by Kennedy. Amendments to the Civil Rights Act. which were signed into law by President Nixon in strengthened Title VII. with race and gender-related measures approved by the United States Congress. In addition. Executive Order of provides higher education guidelines and requires the development and implementation of equcli employment opportunity (HO) programmes for employment in higher education in particular. While a major debate has ensued over student affirmative action and equitable access to universities in the US. particularly with regard to particular public universities and cases brought by the Supreme Court by white plaintiffs. the equal employment opportunity legislation pertaining to university employment remains unaltered. Equal employment opportunity en joys a strong legislative basis compared to student affirmative action. as outlined above. To date there have been no apparent assaults on EEO in higher education and US President Bush reaffirmed the country's commitment to equal employment opportunity soon after ascending to the presidency. Elements of affirmative action have been adopted and adapted in several international contexts. such as in Malaysia. Canada. Zimbabwe. Australia and the United States. I n most cases. affirmative action is a part of what is termed "employment equity". Employment equity legislation in the international context generally contains two main components: weeding out unfair discrimination and of affirmative action to redress injustices of the past. While the development 80

3 SAJHE/SATHO VOL 17 NO of the concept of affirmative action can be traced to the US origin. affirmative action has been applied to different groups of people in different international contexts. The employment equity legislation in most countries pertains to discrimination with regard to gender and race. while some countries also include people with disabilities. In certain countries. affirmative action in terms of race applies to the majority of the population. as is the case in Malaysia and in South Africa. In others. as in the US and Canada. minorities are the beneficiaries. In the US context. for example. affirmative action applies to African-Americans and other ethnic minorities. such as Hispanics and Native Americans. Other countries focus on women and. more recently. people with disabilities. such as Australia. The South African context: a legacy of discrimination and the development of employment equity legislation Many of the laws enacted during British and Dutch colonial rule negatively affected the employment opportunities for African. coloured and Indian people. For example. jobs were reserved for whites under the Mines and Works Acts of which stipulated that Africans. Coloured people and Indians were not legally allowed to work (or. more correctly. to receive wages) as skilled workers. And in 1941 the Factories Act led to the segregation of work spaces. as separate facilities were set aside for different racial groups. These are just a few examples of discriminatory labour legislation that paralleled discriminatory legislation in other sectors. Together these laws form the legacy of discrimination that employment equity legislation is designed to counteract. As the apartheid government began to unravel in the 1980s and early 1990s, the discussion of affirmative action and employment equity gained momentum. Before official affirmative action legislation existed, there were both formal and informal practices of affirmative action in some business (Pandor 1992:20; Human 1992:27). Human notes, for example. that many multi-national companies were forced to start to promot and develop Blacks due to pressure from their overseas head offices (1992:27). The Black Management Forum was highly involved with black empowerment initiatives and the organisation's "Blueprint" document (1993) laid out a plan for affirmative action in employment. The black empowerment initiative known as the "Sullivan Principles", or "SUllivan Code", was also brought in from the US. Herman and Gelderbloem (1996:23) argue that these principles constituted the first affirmative action initiative introduced in South Africa. The code was designed in 1977 by the Reverend Sullivan of the US. specifically for the situation in South Afriea after the Soweto uprising of The Sullivan Principles called on companies in South Africa, particularly multinationals. to take the initiative on their own to speed up social reform and provide opportunities for black advancement. Mabokela (2000:109) argues that the "South African discourse on affirmative action emerges directly from the US conception". However, much of the Australian Affirmative Action Programme of 1986 (which is only related to the advancement of women) was also adapted into the South African EEA. Segall argues that affirmative action is a " process" (1992:14). He argues that employers need to follow several steps in their affirmative action processes, which are contained in the Australian Affirmative Action Implementation Manual: (1) Create a policy statement. (2) appointing a co-ordinator, (3) consultation with trade unions. (4) consultation with employees, (5) conduct a statistical analysis of the workforce. (6) review personnel policies and practices, (7) set goals and targets and (8) monitor and evaluate procedures (1992:14--15). These procedures are almost literally reproduced (with some additions and expansions) in the guidelines for creating an Employment Equity Plan section of the Employment Equity Act of South Africa (Section 20). Gender and race are considered in various countries' legislation, and the inclusion of people with disabilities directly into the employment equity legislation is borrowed from Canada. The South African Constitution, which came into being in 1996, laid the foundation for the development of employment equity legislation. The Constitution states in section 9.2 that "to promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken". This statement formed the basis for the Employment Equity Act of CONSTRAINTS AND CHALLENGES OF THE UNIVERSITY AS A DESIGNATED EMPLOYER The Employment Equity Act was designed for the "traditional" business employer. such as a company or factory. As the university is a particular type of employer. the challenges and constraints it faces are not. in many cases. comparable to those of standard business and industry employers. as shall be seen below. Higher education institutions in any. country are characterised by many organisational elements, such as the function. management style and "product", which are different from business organisations. In addition, the core business of higher education institutions requires high levels of skills, specialisation and qualifications for a majority of positions. both academic and technical or administrative. In the South African context. in which universities were created as racially segregated public institutions, this divergence from typical industry employers becomes even more pronounced. The 81

4 ISSN functions of universities were created and shaped within the delimitations of the apartheid state apparatus. Universities in the South African context must not only grapple with higher education employment needs in terms of employment equity. but must also confront their race-based histories and try to reconfigure themselves in the new social. political and higher education environments. Five constraints and challenges which set universities apart from other business employers are discussed below. Higher education legislation and policy developments The Employment Equity Act affects all employers. and Chapter III (on affirmative action). affects all employers with over 50 employees. Three additional labour laws from the new political dispensation affect all types of employers (including universities) as well: the Basic Conditions of Employment Act of the Labour Relations Act of 1995 and the Skills Development Act of However. most traditional business and industry employers often do not have additional legislation. policy requirements and restrictions. The university must also grapple with new laws and policy developments in the higher education sector. which has experienced fundamental reconstruction in a rapidly changing global higher educati 0 n co ntext. The 1997 White Paper on Higher Education and the resulting Higher Education Act (HEA. 1997) require certain major changes. such as a reduction in funding and different funding formulas and also require each institution to submit three-year rolling plans. Unfortunately. the cycle for the three-year rolling plans does not correspond to that of the development and reporting requirements of the employment equity plans. which translates into processes functioning alone that should ideally be operating in tandem. In addition. the Higher Education Quality Committee of the Council on Higher has been established for quality assurance purposes in higher education. adding further stress on already over-loaded institutions. Amidst the myriad policy and legislative initiatives underway. both in the labour sector and in the higher education sector. which often present conflicting priorities. universities must grapple with employment equity. Severely-burdened and. in many cases. financially-strapped institutions. which are often going through an identity and/or leadership cris.is or face potential closure must find the time and resources to work on the issue of employment equity. Such fears were reflected in a January 2000 Centre for Higher Education Transformation (CHET) report. which was a study of the development of South African higher education institutions' employment equity plans. The report notes that floundering historical disadvantaged institutions (H Dis). particularly those that faced closure. had many other pressing issues of concern. and considered employment equity a low priority (EPU. UWC 2000:37). The most significant recent addition to the changing policy in the higher education landscape is National Plan for Higher Education (2001). which follows on the Council on Higher Education's Towards a new higher education landscape report (CH E 2000). also known as the "Size and Shape" report. The report follows the H EA's mandate that the higher education system should be nationally co-ordinated and integrated and calls for the restructuring of the system and of particular institutions. It should be noted that the 2001 National Plan for Higher Education and the National Working Group's 2001 document The restructuring of the higher education system in South Africa highlight equity in general and employment equity in particular as key goals of the higher. education sector. The "pool" issue: lack of qualified applicants. poaching and special qualifications Virtually all employers in South Africa currently face a common challenge with regard to employment equity: the small pool of black. women and disabled applicants (particularly African men and women) available for many positions. The poor educational background of most blacks. due to the apartheid education system. has left them at an extreme disadvantage relative to whites regarding formal qualifications and skills. especially in technical or science fields. In addition. the patriarchal and sexist structures which have existed in South Africa for centuries. has resulted in fewer women advancing in their fields or applying for mid to high-level positions. In most fields. African women are the most underrepresented group. Disabled people have also historically been discriminated against in South Africa. and are not adequately represented in any of the employment sectors. This conundrum is commonly known as the "pool issue". referring to the small number of applicants from the three designated groups. The dearth of qualified applicants from the designated groups has also led to another phenomenon. often referred to as "poaching". Blacks with qualifications. particularly African men and women. are highly sought after by other higher education institutions. government. businesses and non-governmental organisations. It is becoming common for employers to lure promising candidates from one position to another with monetary or other rewards as a carrot. While the pool issue itself is similar for most types of employers. the issue of poaching impacts on an employer such as a university or non-profit organisation in different ways to traditional business employers. As higher education institutions cannot offer 82

5 SAJHE/ SATHO VOL 17 NO competitive salaries and as they are currently undergoing crises of one form or another, they have difficulty in drawing and retaining quality staff members. Experienced or promising young staff members who were trained at historically black institutions are now being singled out and approached by formerly white institutions, which can generally offer.higher salaries and higher stature. due to their privileged position under apartheid. The lack of qualified applicants from the designated groups and the competition from business and industry is particularly detrimental to universities, as the qualifications required for most positions at a university are higher than in most fields. In addition. in most cases in the university setling, experience is not equated with formal qualifications, as it is in many business environments. For instance, it is more likely that an information technology employee would be hired with minimum qualifications and trained on the job. while a professor would not be hired without the formal academic qualification. Therefore, staff members cannot generally advance or even be hired without the proper formal qualifications. especially since the recognition of these qualifications is an international standard. In addition, language use in higher education institutions presents an additional challenge toward achieving equity. Because English and Afrikaans were privileged over African and other languages during apartheid. those applying for academic or administrative positions in higher education must often communicate in their second or third language. The Ministry of Education's policy on language (November 2002) addresses this disadvantage, and requires that higher education institutions assist staff in acquiring the necessary language ability. However, this does not solve the main issue of the lack of opportunities in languages other than English and Afrikaans. The dilemma of universities with regard to the pool issue thus centres on how to remain internationally competitive in the university sector, while also remaining locally competitive and attractive to applicants within the national and regional job market. This unfortunate situation would be difficult and complicated for a university even without the requirements of employment equity. With this convergence of pressures. however. the situation of the university as an employer becomes even more difficult and strained. Funding and rationalisation The declining governmental funding available to most universities adds an additional constraint, which is generally not experienced by business employers. In the past. most higher education institutions, both HDls and historically advantaged institutions (HAls), received a significant proportion of their funding from the government. much of it in individual student bursaries that were paid by the student to the university. Badat et a/ (1994:23), however. explain how HAls and HDls received differential funding according to the formula used at the time, which "rewards institutions for post-graduate teaching. natural science students and research-precisely the attributes which the HBUs do not possess". Therefore. the funding formula served to reproduce inequalities in higher education. by rewarding those activities which the HDUs were precluded from pursuing. In addition. the bulk of agency funds controlled by the science councils are allocated to the HAUs and HAUs also had (and continue to have) a large amount of private donor support. In the late 1980s, direct governmental subsidies underwent severe cutbacks, and institutions were scrambling to make up the difference, while applications for admission and student numbers soared. The transfer of power to the majority has not made the issue of funding any easier, to the frustration of thousands of historically disadvantaged students. The new South African government faces a similar conflict of priorities as the universities. In addition to higher education, the current government is grappling with a legacy of under-funded primary and secondary schools, unemployment and regional problems, not to mention trying to provide basic services to povertystricken rural areas and informal settlements, such as housing and health services. Owing to current governmental levels of funding for higher education, rationalisation has been debated and undertaken at several universities, mainly HDls. However necessary rationalisation may be. it can have intense reactions among academic and administrative staff and students. Rationalisation often means a change in the conditions of service of employees and often changes fundamental aspects of the work environment such as staff/student ratios. Such undesired changes, along with uncertainty about retaining a position. can lead to low morale. fear and frustration on the part of those who remain. Contrary to the popular misconception regarding employment equity, affirmative action does not equal rationalisation. However. funds are tight. and the available resources are low for employment equity measures. Whatever the ideas are about affirmative action. the current financial malaise is also a substantial hindrance to planning and implementing employment equity in the university sector. Universities as a unique workplace A university has a specialised workplace environment. People who work at universities, particularly on the academic side are usually there because of a "calling" 83

6 ISSN as an academic and will accept that they are not well. remunerated. but that they may achieve high status as professors. As part of this unique workplace environment. universities have taken on two main roles that are different to those of traditional business employers. The first is a role in training graduates for all sectors of employment. not just to work in the university environment. The university cannot limit itself to training anyone type of graduate for anyone type of employer. as traditional business employers can. The university also must acknowledge that most of its graduates will not stay in the university environment. This fact makes the idea of "growing your own timber" in higher education difficult. in other words. cultivating Blacks who will stay in the institution and take up positions at the university and potentially train and encourage future Black university staff. As discussed above. the pool for qualified people from the designated groups is very small. The role of training people for all sectors has direct implications for constraining attempts at employment equity. The second role which is part of the unique workplace environment of universities is the implicit mandate of affecting social change. The focus of this role in affecting change has shifted from the anti-apartheid struggle to solidifying democracy in the post-1994 era. The role higher education can play in creating a sustainable democracy has been one of the overriding debates regarding higher education transformation. Many educational leaders. such as Herman (1995:0nline) have pointed out that "South African education since 1990 has been part of the arena of debate for fundamental societal change from the apartheid order to a just. nonracial democratic state". As the shift to the new dispensation was under way. Gerwel (1992:125) suggested that it was "imperative for universities to develop a critical alignment with the democratic movement as the dominant ideological orientation describing our context"'. As recent as the June 2000 "Size and Shape" Report (CHE:32). recommendations have been made regarding the social role higher education can play. Higher edugation. then. has been seen as the key to cultivating a society of individuals with equal rights who are capable of competing. and allowing their nation to compete. in today's world. With the unique workplace environment of universities and this broader social mandate in the forefront. and with the understanding that they are contributing to the greater pool of qualified candidates. universities may not take seriously enough the need for employment equity in their own workplaces. In order for universities to be leaders and role models for democracy. they must themselves practice the politics of inclusion and forge democratic principles. Universities' racial basis and individual legacies The racial basis of all higher education institutions. which were created in the former racist regimes in South Africa. skews the current situation of each institution in relation to employment equity and sets them apart trom traditional business employers. Though businesses were also racialised. both informally and in terms of fob reservation legislation. they were not so starkly segregated along racial lines. Because of their racial make-up. most institutions still have a predominance of one racial group in their staff complement. The apartheid legacy may create unusual staff demographics. For example. in some rural H Dis. there may even be a need to increase the number of Whites at the institution. I n addition. black institutions were placed in isolated geographical locations that also present disadvantages and challenges. The isolated location of most H Dis adds to the difficulty of attracting top academics and contributes to isolation of academics and students from urban sites of learning (Subotzky 1997). All of these factors based on the university's unique history have important implications for the context in which a particular university interprets the Employment Equity Act. CONCLUSION AND CHALLENGES When considering employment equity in South Africa. universities face a number of constraints and challenges that set them apart from most designated employers. These specialised constraints and challenges have important implications for the space in which the Employment Equity Act can be interpreted in the university context. The process of developing the employment equity plans is well underway at most institutions. Though the implementation process has also begun in some institutions. a great deal of research on this implementation phase remains to be conducted. 84

7 SAJHE/SATHO VOL 17 NO REFERENCES Badat. S et al Differentiation and disadvantage: the historically black universities in South Africa. Belville: Education Policy Unit. University of the Western Cape. Black Management Forum Blueprint for affirmative action. Publisher unknown. Council on Higher Education Towards a new higher education landscape: meeting the equity, quality and social development imperatives of South Africa in the 27 st century. Pretoria: Council on Higher Education. Department of Labour Employment equity act. Pretoria: Government Gazette No Education Policy Unit. University of the Western Cape Implementing the employment equity act in higher education institutions. Final report commissioned by the Centre for Higher Education Transformation. Pretoria: Centre for Higher Education Transformation. Gerwel, J Transformation and the universities: the experience of the University of the Western Cape, in Botha, T, Unterhalter, E & Wolpe, H (eds) Education in a future South Africa: policy issues for transformation. Trenton, New Jersey: Africa World Press: Herman, H & and Gelderbloem, N Access and equity: major challenges to universities in post-apartheid South Africa. Unpublished paper presented to the World Congress of Comparative Education. University of Sydney, Sydney, Australia, 1-6 July. Herman, H School-leaving examinations, selection and equity in higher education in South Africa. Comparative Education 3(2): Carfax Publishing Company. Human, L The development of black and female managers: why many affirmative action prog(ammes fail, in Maphai, Vet al Affirmative action: redressing the balance? Rondebosch: UCT Printing Department: Mabokela, R "We cannot find qualified blacks": faculty diversification programmes at South African universities. Comparative Education Review 36 (1) : Ministry of Education Language policy for higher education National plan for higher education. National Working Group The restructuring of the higher education system in South Africa. Pandor, N Affirmative action - the route to equal opportunity. in Maphai, V et al Affirmative action: redressing the balance? Rondebosch: UCT Printing Department: Republic of South Africa Constitution of the Republic of South Africa. Pretoria: Government Gazette No Segall, R Affirmative action in Australia, in Maphai. V et al Affirmative action: redressing the balance? Rondebosch: UCT Printing Department: Subotzky, G Summary of final research report: the enhancement of graduate programmes and research capacity at the historically black universities. Belville: Education and Policy Unit. University of the Western Cape. United States White House Affirmative action review. Washington D.C. : The White House. [Online.] Available from: < 85