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Gender equality - the forgotten component in employment equity initiatives (part 1)

Gender equality - the forgotten component in employment equity initiatives (part 1)

 

1. Introduction

The increased participation of women in the labour market and economy in general is essential in developing a strong and broad skills base for the economy. The challenge is to ensure this leads to women's economic empowerment and does not further exacerbate inequalities between women and men. Ensuring gender equality is a social and constitutional imperative for individuals and business entities alike. The purpose of a gender policy and code of practice is to:

>> Advance the goals of equality, development and peace for all women.

>> Acknowledge the voices of all women everywhere, taking note of the diversity of women and their roles and circumstances.

>> Recognise that the status of women has advanced in some important respects in the past decade but that progress has been uneven, inequalities between women and men have persisted and major obstacles remain.

>> Reaffirm our commitment to the equal rights and inherent human dignity of women and men and other purposes and principles enshrined in the Bill of Rights, employment laws and international conventions and recommendations;

The legal case for implementing gender equality policies and practices is clear by reference to numerous Acts, Codes of Good Practice and ILO Conventions and Recommendations. These are listed in Appendix 1.

A list of legal and technical terms used in this article can be found in Appendix 2.

2. Discrimination

A gender sensitive approach to workforce management is not a goal in itself, but a means to achieve equal rights between women and men, and to promote women’s rights in particular through appropriate workplace interventions.

Section 9(3) of The Constitution sets out rights to equality. In doing so, it lists prohibited grounds of discrimination (race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, and birth). Differentiation based on any of these listed grounds by individuals or the State will be presumed to be unfair.

The Constitutional Court has held that differentiation on grounds analogous to those listed in s 9(3) will also constitute discrimination. The Promotion of equality and prevention of unfair discrimination Act, 4 of 2000 has reinforced this Constitutional Court principle by providing that prohibited grounds of discrimination includes any grounds where discrimination based on that other ground:

>> Causes or perpetuates systemic disadvantage;

>> Undermines human dignity

>> Adversely affects the equal enjoyment of a person’s rights and freedoms in a serious manner that is comparable to the listed grounds of discrimination. [Definitions: "prohibited grounds", Promotion of Equality and Prevention of Unfair Discrimination Act]

Analogous (or comparable) grounds of differentiation, which may give rise to a claim of discrimination, could include physical characteristics such as weight, height, or even "looks".

3. Types of Discrimination

Discrimination is differentiation based on illegitimate grounds. Not all types of discrimination are necessarily unfair. The Constitution, as well as, for example, the Employment Equity Act provides for legitimate grounds for differentiation, namely, 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 [s 9(2), The Constitution].

Section 15 of The Employment Equity Act exhorts employers in general and compels designated employers in particular to adopt affirmative action measures, which must include:

>> Measures to identify and eliminate employment barriers, including unfair discrimination, which adversely affect people from designated groups (which includes women)

>> Measures designed to further diversity in the workplace based on equal dignity and respect of all people

>> Discrimination based on an inherent requirement of the job does not constitute unfair discrimination.

At the outset it is important to realise that employee behaviours are equally important in ensuring a fair and equitable workplace. No matter how fair an organisation’s policies may be, if individual managers do not apply them consistently and fairly, the organization will not be equally accessible to everyone.

Attitudes are one factor in shaping behaviour, and the attitudes and behaviours of individual employees help form the organizational climate as a positive or negative experience for designated group members.

That fact that an employer has identified and removed employment barriers to the selection, promotion and, development of employees from designated groups may not be sufficient to prevent unfair discrimination claims. The discriminatory behaviour of individual managers, unless addressed by the employer through its grievance and disciplinary procedures, may still give rise to discrimination claims by employees.

4. Discrimination may take many forms

Discrimination is to make a choice, a distinction, or some of differentiation. We all make choices, and this, every day. Discrimination becomes illegal when choices, based on prohibited grounds, limit possibilities of some groups or some individuals.

>> INTENTIONAL DISCRIMINATION is open or conscious behaviour, which is intended to be, or to result in, unfair or inequitable treatment based on the prohibited grounds. It may include harassment. Some examples are:

# Intimidation, name-calling, slurs, jokes, threats, graffiti, social exclusion, physical assault, refusing service, repeated "teasing", materials that degrade, humiliate, or exclude.

# Unequal or differential treatment is treating individuals differently on the basis of the prohibited grounds. For example:

# Asking women (but not men) about family status and childcare arrangements; requiring only people with physical disabilities to have employment medicals; automatically requiring language proficiency tests for members of designated groups.

# Systemic discrimination, on the basis of the prohibited grounds, is built into the policies and practices of an organization so that it is perpetuated automatically. It is consciously or unconsciously carried out and it unintentionally or intentionally excludes individuals or groups of individuals. Examples are:

# Inflated educational requirements (credentialism) for positions; tests which do not measure real job skills but have the effect of screening out women and members of other disadvantaged groups; lack of appropriate transportation; physical barriers; excessively lengthy experience requirements; etc.

>> Direct discrimination

Direct discrimination refers to situations or treatment that is obviously unfair or unequal. For example, if an employer won't hire someone just because they are a woman.

>> Indirect discrimination

Indirect discrimination refers to differentiation on grounds, which on the face of it, may be innocent, yet the impact of such differentiation is discriminatory. This may occur where the effect of certain requirements, conditions or practices imposed by an employer has an adverse impact disproportionately on one group or other.

For example, an employer who says that they need a person over 6 feet tall to do a job is likely to end up discriminating against women and some ethnic groups. This is because women and people from some ethnic groups are less likely to be this height than men or people from other ethnic groups. If it is possible to show that the job does not need someone 6 feet tall, or that it could easily be adapted to suit people who aren't that tall, then they could claim indirect sex discrimination or indirect race discrimination.

With Indirect Discrimination an employer can argue that there may be discrimination, but that it is actually required for the job. This does not happen very often, but circumstances where it might occur are, for example, actors who are needed to play certain characters for authenticity. The same can be true for restaurants, for example an Indian restaurant will want Indian staff rather than white staff. Or where race or gender is a genuine occupational qualification for the job, for example, employing women in an all female hostel.

>> SYSTEMIC BARRIERS include policies and practices, which intentionally or unintentionally exclude, limit and discriminate against individuals and groups. Attitudinal barriers create an environment where people may act out their prejudices, assumptions and biases. These types of barriers may be addressed through education, training, organizational change and organizational development programs.

Systemic discrimination is much subtler. It is sometimes difficult to detect because, unlike intentional discrimination, systemic discrimination is often unintentional. Even a policy or practice that was never designed to exclude the designated groups may result in systemic barriers. Employment policies and practices, which appear neutral and are applied equally may have a disparate effect on different groups. Understanding the concept of systemic discrimination, as well as other types of employment discrimination, is key in assessing the impact of systemic discrimination on your organization's employment systems.

Consider the following examples:

>> Your workplace does not have ramp entrances or washrooms that are accessible to wheelchair users. Qualified candidates in wheelchairs are therefore excluded from working for your company even though no one set up a policy to deliberately exclude them.

>> Your company has weight and height requirements (in terms of physical strength) that were instituted years ago but are no longer job related. These excessive requirements eliminate the majority of women who do not meet the height or weight requirements.

5. Policy formulation

The first step towards developing a company gender awareness policy would be to:

>> Firstly, to fully comprehend the broader implications of what constitutes gender equality; and

>> Secondly, to conduct an employment systems review of policies, procedures and practices.

Gary Watkins

Gary Watkins

Managing Director

BA LLB

C: +27 (0)82 416 7712

T: +27 (0)10 035 4185 (Office)

F: +27 (0)86 689 7862

Website: www.workinfo.com
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