Employment Equity Act: "Mr President, we are not willing to do your dirty work"

Key topics:Employers forced to classify employees by race face ethical, legal challenges.Employment Equity quotas criticised for unconstitutional racial discrimination.Legal challenge urges government to stop burdening employers with racial classification..Sign up for your early morning brew of the BizNews Insider to keep you up to speed with the content that matters. The newsletter will land in your inbox at 5:30am weekdays. Register here.Support South Africa’s bastion of independent journalism, offering balanced insights on investments, business, and the political economy, by joining BizNews Premium. Register here.If you prefer WhatsApp for updates, sign up to the BizNews channel here.The auditorium doors will open for BNIC#2 on 10 September 2025 in Hermanus. For more information and tickets, click here..By Gerhard Papenfus, NEASA Chief Executive.Dear Mr President and Minister MethBy this time, you should be well aware of the urgent legal challenge launched by NEASA and Sakeliga against the Employment Equity quotas and accompanying administrative regulations. Although this challenge deals with both procedural and substantive defects relating to the new numerical sectoral quotas, another major obstacle, which has been amplified by the new quotas, stands in the way of employers even contemplating complying with these regulations. .The Employment Equity regulations and the unconstitutional obligation placed upon employers to classify employees by their race and disability is ethically untenable, impractical, and divisive. .The purpose of the individually completed EEA1 form is ostensibly to acquire data in order to create a workplace profile illustrating the current racial, gender, and disability composition of the employer’s workforce. Therefore, by requesting employees to self-classify as to their race and disability, this form effectively expects them to firstly, navigate the complexities of race, gender and ethnicity in a policy and classification-criteria vacuum and, secondly, in perpetuity, set themselves up to be discriminated against based on a potentially uninformed decision. However, there is no legal obligation on employees to complete the form or to do so ‘accurately’. We have already heard of employees refusing to complete the EEA1 form for reasons including personal convictions, fear of discrimination, being of a mixed ethnic background, etc. There are no guidelines for employees regarding the determination of race, and the guidelines regarding disability contain a myriad of contradictions. This eventuality has, seemingly, also been anticipated in the regulations as can be deduced from the wording of the EEA12 form, which stipulates that: “Where there is doubt in the self-identification process of an employee, existing and/or historical information may be used to assist to verify an employee’s status.”; and Regulation 8(2), which reads as follows: “Where an employee refuses to complete the EEA1 form or provides inaccurate information, the employer may establish the designation of an employee by using reliable historical and existing data …” Minister, these provisions place employers in a precarious and impossible position, particularly in the context of South Africa’s history of state racial classification. The regulations expect employers to unilaterally and arbitrarily classify the race and disability of a particular employee who has elected not to self-identify by these criteria or whom, in the opinion of the employer, or an appointed human resource manager, or consultant, was inaccurate when self-declaring. This decision must then be made by an employer to determine the race or disability of a particular employee. It is not within the constitutional ambit of any employer, or any other person for that matter, to decide on these characteristics of another person. Since the end of the Apartheid racial classification system, it is trite that the former state race classification laws no longer exist and that such laws have no place in society. In the previous dispensation, when the government assigned itself powers of racial classification, it resulted in widespread local and global fallouts and trade and financial sanctions. It is for good reason that these racial classification laws were withdrawn at the start of the 1990s. Although the government no longer has such authority, the Employment Equity regulations impose on employers the obligation to engage in just such classification of people, without any empowering provision to do so, and without providing any guidance on the methods or criteria to be implemented to reach just conclusions, within the framework of the Rule of Law, on the race and disability of a person. This obligation imposed on employers, not only places them in an untenable ethical position, but is also legally impermissible and practically impossible to comply with. The requirement that employers must objectively (yet arbitrarily) classify a person in such ways, is unconstitutional and almost certainly places an obligation upon employers to contravene the anti-discriminatory provisions contained in section 9 of the Constitution. The risk of facing claims of discrimination and maltreatment by employees due to such arbitrary and potentially demeaning classification processes is not something that employers can afford to overlook. Employers will simply not be able to comply with this obligation for the reasons listed herein, which will cause them to be unable to comply with the remainder of the legal requirements as contained in the Employment Equity Act. By virtue of these regulations and the Employment Equity Act, the intention of Government to discriminate based on race is clear. However, by cascading the responsibility and obligation to perform this type of unconstitutional discrimination upon employers, Government is attempting to evade responsibility for reverting to a system of statutory racial classification and discrimination. This is why Government creates legislation that forces employers to do its unethical and unconstitutional bidding. Mr President and Minister Meth, we are not willing to do your dirty work. NEASA cannot allow for this unconstitutional obligation and unacceptable burden to be placed upon employers. We therefore call on the state to stop forcing employers to carry out Government’s desired racial classification and discrimination on its behalf, and take responsibility for its own misguided ideologies.

Employment Equity Act: "Mr President, we are not willing to do your dirty work"

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