EMPLOYMENT EQUITY: Department cannot answer questions on race classification.

Dear employer

In preparation for Employment Equity (EE reporting), NEASA advised employers to send a letter to the Department of Employment and Labour (DoEL) confirming that:

• where their employees elected to self-classify on the EEA1 forms, they, as the employer, cannot guarantee or be held accountable for the accuracy of the classification, since there are no criteria or guidelines regarding how racial classification is to be done;

• they do not believe that there is any constitutional or legislative imperative permitting employers to classify individuals on race or disability;

• they attempted, with historical and/or current data, to classify their employees for purposes of the EEA12 form, despite no guidelines existing as to what current or historical data entails;

• their attempt at compliance with the EE regulations, planning and reporting requirements, was done under protest, due to the arbitrary nature of the quotas and the Act’s requirements for racial classification;

• their employment equity plan has been populated with the relevant 5-year sectoral numerical targets, but that it was only done as a legislative requirement, and they submit that the targets are arbitrary, unrealistic, unachievable and impractical.

In this letter, the Director-General of the DoEL is called upon by employers to provide guidance on the elements/characteristics that should be taken into account when determining the race of an individual.

The Director of the EE Directorate has responded to one of the employers who sent such a letter to the DoEL, in which it merely stated that:

“Where employees elect not to self-classify, Regulation 8(2) unambiguously mandates that the designated employers must determine the employee’s designation using reliable historic or existing data, and persons with disabilities have the right not to declare their disability. Compliance with this requirement is a statutory responsibility and not subject to employer discretion.”

No guidance or criteria regarding racial classification of employees is provided by the Director at all, apart from stating that “reliable historic or existing data” must be utilised by employers to do so, in the event that employees refuse to self-classify or did so ‘inaccurately’. What exactly “reliable historic or existing data” entails or how it is to be utilised by employers to place employees into racial boxes, is also not elaborated on by the Director.

The Director fails to address the racial classification conundrum and avoids the issue by relying on case law to argue that “racial categorisation for the purposes of monitoring transformation is constitutionally recognised and forms part of the legitimate exercise of government to redress historical inequalities.”

The DoEL maintains that the reporting requirements, including classification for workforce profiles, of the Employment Equity Act, as amended, are constitutionally sound and legally binding, and concludes that if the 5-year targets cannot be met by an employer, that they should rely on any reasonable grounds to justify their failure to comply.

The DoEL insists that designated employers remain obliged to align their Employment Equity Plans with the gazetted targets. This is purely an attempt by the Department to avoid the real issue - that employers are expected to racially classify their employees in a complete vacuum.

For more information

NEASA Media Department

media@neasa.co.za

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