A proposed amendment bill to promote equality and prevent discrimination has been slammed by a national employers’ organisation as unattainable, ideologically skewed and impossible to implement.
The National Employers Association of SA (Neasa), which has 10,000 members, says it is vehemently opposed to the Promotion of Equality and Prevention of Unfair Discrimination Amendment Bill, which has been released for public comment by the department of justice & constitutional development. Neasa has called for it to be scrapped.
The Institute of Race Relations is also opposed to the bill, which it says will have far-reaching and detrimental consequences for business and could put pressure on companies and other entities to change the terms on which they interact with specified groups of people, to avoid heavy penalties for failing to “promote equality in terms of impact and outcomes”.
In a statement on Tuesday, Neasa senior policy adviser Rona Bekker said inequality in society could not be addressed by way of the proposed amendments but only through upskilling and proper education.
Neasa’s written submission on the bill stated that the proposed amendments went beyond the legislative scope and jurisdiction of the original act, contradicted the values enshrined in the constitution and served as mechanisms to unfairly benefit and advance certain groups “as a retrospective payback for historical injustice”. It said instances of unfair discrimination and hate speech were already sufficiently catered for in current legislation.
“Instead of criminalising fair discrimination on justified objective grounds, the state should focus their time, efforts and resources on improving the socioeconomic circumstances of their citizens. The salient issues, such as hate speech and racism, will not disappear because there is extensive regulatory legislation thereon. Neither will the socioeconomic circumstances of the people be improved or protected,” it said.
The bill proposes to expand the definition of equality in the act to include the equal right and access to resources, opportunities, benefits and advantages and the requirement to achieve equality in terms of impact and outcome.
The definition of discrimination is expanded to mean any act, omission, practice or situation that, whether intentional or not, imposes burdens on, withholds benefits from, causes prejudice to or otherwise undermines the dignity of any person for a reason related to the prohibited grounds of race, sex, gender and 15 other grounds.
It is irrelevant whether the reason for the discrimination is the sole or dominant reason for the act or omission in question. An act will be discriminatory even when it was not intended as such. The original act lists 18 prohibited grounds: race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, birth and HIV/Aids status.
This expanded definition of discrimination will make it easier for complainants to substantiate their claims of unfair discrimination. Neasa says that would tip the balance against the accused too far, give the complainant too much power and deprive accused people of equality before the law.
Bekker said if the bill were enacted in its current form, entities would be expected to “eliminate discrimination”, irrespective of whether it is fair or unfair, and the objective criteria defence will be irrelevant in assessing whether they have failed to promote equality.
An example would be a bank charging higher interest rates to people who pose a higher risk of default and who happen to be black. This could be interpreted as a failure to promote equality and as an act of unfair discrimination.
She noted that the constitution did not include the aim to eliminate, prohibit or prevent fair discrimination on objective and justified criteria though it did prevent unfair discrimination.
“The expanded definition of discrimination in the bill may make it more difficult for companies to prove that any discrimination in which they may have unintentionally engaged is not unfair. The objective criteria defence will still be available, but companies may nevertheless find it harder to show the fairness of their conduct when the definition of discrimination is so much wider than before,” Bekker said.
Companies “will now have to tread on proverbial eggshells when dealing with all people concerned, in case they unintentionally, by accident or through the actions of an employee discriminate against someone”.
A further proposed amendment will introduce joint and several liability for discrimination by a worker, employee or agent. Employers would have to show they had taken “reasonable steps” to prevent discrimination by workers, employees or agents if they want to avoid facing the legal consequences alongside those employees.
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