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Legal experts warn that the Employment Equity Act draft regulations could be unconstitutional

by , 17 March 2014
Legal experts are warning that the Employment Equity Act draft regulations published for public comment earlier this month are 'very likely unconstitutional'. Continue reading to find out why experts believe this is the case.

Could the Employment Equity regulations be unconstitutional?

Earlier this month, we reported that the Department of Labour (DoL) has published the Employment Equity regulations for public comment.

Since then, various groups have had their say regarding the regulations. But the strongest opposition towards the regulations has come from legal experts. They believe the regulations are unconstitutional.

Legal Brief Today reports that according to a Business Day analysis, experts are questioning whether it's fair to give some groups more opportunities than others.

According to the draft regulations, companies that employ more than 150 people would have to use the 'national economically active population' demographics for three upper levels (top and senior management and professionally qualified). And an average of national and regional demographics for the three lower levels (skilled, semi-skilled and unskilled technical) as a guide when determining targets.

Companies that employ less than 150 people would have to use the 'national economically active population' demographics for two upper levels and an average of national and the regional demographic for four lower levels.

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Here's why experts are opposed to Employment Equity regulations

According to Legal Brief Today, experts say the regulations are aimed at giving Africans a special leg-up in the employment market above coloureds and Indians in professional, senior and top management positions.

They say the effect in provinces with large regionally based minorities is 'a profound skewing of opportunities'. They explain that although in the Western Cape coloureds make up 49% of the population, the regulations say they should achieve a level of only 9% of representation at professional, senior and top levels. The same is true in KZN, where although Indians are 7% of the demographic profile, they should not be represented in a proportion of more than 2.5%.

In the report, Chris Todd of Bowman Gilfillan Attorneys says the regulations could give rise to 'several absurdities'.

He says in companies with few employees, some race groups may be barred from employment at senior levels entirely.

He says 'this is out of line with existing jurisprudence on the right to equality, [and] if applied literally in all circumstances, these regulations would be unconstitutional.'

Dion Masher, of Edward Nathan Sonnenberg, shares the same sentiments. He says he doesn't think the regulations will stand constitutional scrutiny as they constitute 'unfair discrimination.

He explains that while the Constitution allows for the limitation of rights through laws of general application, this needs to be justifiable and fair.

The DA has also criticised the draft Employment Equity regulations.

We reported not so long ago that the Democratic Alliance (DA) believes the regulations are 'draconian' and would have a 'devastating' effect on job creation.

Latest developments are that the DA is considering a legal challenge to the Employment Equity Act draft regulations.

It will be interesting to see whether the government will change some of the problematic regulations in the Act. We'll keep you updated on this developing story.



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