BEE, DEI, implicit bias and disparate impact - Chuck Stephens
Key topics
Trump administration targets SA's BEE as reverse discrimination
Implicit bias and disparate impact seen as rising in SA governance
US–SA relations worsen amid growing concerns over minority treatment
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By Chuck Stephens*
These four terms are going to make or break South Africa. So let’s try to come to terms with them in this analysis...
The deep background is that relations between South Africa and the new administration in the USA have deteriorated in 2025. They are at a low ebb, and SA is not enjoying the “economic diplomacy” that we have seen on display in Donald Trump’s visit to the Persian Gulf states.
First an aside… the Persian Gulf takes it name from Persia, which is on its north shore. Persia has a long history as a regional superpower in the Middle East, going back to its war with Greece 2500 years ago. That was regional aggression which it is still busy with. In our time, this is through proxy groups like Hamas, Hezbollah and the Houthis.
But the Arabs are not Persians. On the south shore of the Persian Gulf are Saudi Arabia, Qatar and the United Arab Emirates. Arabs are different from Persians. They speak a different language, although Islam spread from Arabia to Persia, replacing its traditional Zoroastrian religion. So while they are all now part of the Muslim world, they are clearly distinct, and Donald Trump has brought that to the fore. He is essentially splitting Muslim solidarity, asking moderate Arab nations to seek peace and prosperity, while at the same time squeezing Iran terribly hard with sanctions and even military threats.
What does this have to do with BEE and DEI? My point is that America is serious about its critique of BEE, the South African version of DEI. In his first 100 days, Trump has been busy dismantling the DEI policies of both public and private sectors. He has been proactive about this – at home. So we can expect him to follow through with it in South Africa. Obviously there are other reasons that he is distancing his administration from SA. Like the allegations it has made against Israel’s leaders in the International Criminal Court. But I will not digress into those other reasons. The centrepiece of the Trump administration’s concern with South Africa is BEE. It is the local equivalent of DEI, which is anathema to the MAGA movement.
However, there is double trouble… DEI is aimed at helping minorities. It is sometimes called “positive discrimination” because it does give some people an advantage, the reason being that they were historically disadvantaged. However, in South Africa, BEE favours the majority, not a minority. This has been called “nonsensical” by The Economist for many years. It can hardly be called “positive discrimination” in the same sense that DEI is. Many voices argue that it is hindering SA’s economy more than it is helping.
Worst of all comes expropriation without compensation, by which the black majority is perceived to be bullying a minority rather than protecting it, which is expected of governance anywhere. That is why Trump has invited Afrikaners to emigrate to the USA and is fast-tracking them through immigration. Frankly it is because BEE is seen in the same dim light as DEI and is thus regarded as hostile discrimination. It conjures up the prospect of farms seizures like those seen in Zimbabwe 20 years ago.
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I have lived in South Africa for the past 30 years. Gone are the days when the ANC held the high moral ground under leaders like Nelson Mandela, Oliver Tambo and Albert Luthuli. The “lost decade” under Jacob Zuma changed all that. South Africa is no longer seen as the rainbow solution to racism, it has come to be seen as a perpetrator.
Enter “Implicit Bias”. This is a phenomenon that affects the Judiciary due to the demography of its actors – magistrates, prosecutors, clerks, investigators, etc. In short, the courts and the police. In the USA, when a young African American is arrested and charged with a crime, he has to face a jury in court. Due to the average demography of his country, chances are the jury will be composed of nine whites and one black. Can he possibly get a fair trial, given the deeply embedded prejudices? This phenomenon is called “implicit bias”.
I have experienced it personally in South Africa. I am a pale male, who has legally immigrated. I am a permanent resident. I don’t vote, but as far as I know I should enjoy all other rights of SA citizens. However, I have become a target of certain government officials due to my public engagement. I have criticized corruption, waste and state capture. All the while I have been making a positive social contribution (as a career missionary). But when it comes to language, culture, the police and the courts, I am always on the back foot. I am still a white foreigner and my treatment has been reported in the media and in my books. Does it surprise anyone that an elderly male from overseas is treated with contempt? This is implicit bias, and I can empathize with the Afrikaner minority. The 9-to-1 advantage of SA’s demography is only magnified by BEE. It is frightening.
So what about “disparate impact”? Well, I keep hearing President Ramaphosa arguing that Donald Trump is misinformed. He says there is no official policy that unduly marginalizes or threatens Afrikaners. Nevertheless, in practice – if not in policy – “implicit bias” is there. Magnified by BEE. I have seen it and felt it myself.
“Disparate impact” is not about intent. Ramaphosa may be right that the ANC has no intent to marginalize the white tribe of Africa. Rather, it is about impact. It measures whether, in fact, there has been discrimination even when it was not intended.
For example, California was recruiting firefighters. As part of its selection criteria, it set a minimum weight of 100 pounds (i.e. 46 kilograms). In view of the fact that it is hard work carrying ladders and those big water hoses. In a crisis, a firefighter might have to carry injured victims out of a blaze. So they felt that anyone smaller than 100 pounds would be just too small. There was no intent to discriminate. In fact, the best interests of the general public were prioritized.
However, women applicants took exception. Because women are typically smaller and lighter than men, they claimed this was discriminatory. And when the court decision was announced – the women were right. As a protected group, they had been denied equal rights. This kind of discrimination is called “disparate impact”. It is not about intent, it is about impact.
The way Donald Trump thinks is that the welfare of the general public in terms of safety is paramount to the concerns of women weighing less that 100 pounds. That is consistent with his policies on removing DEI from the work place.
Could both Ramaphosa and the Afrikaners be right? Without intent to harm, is harm still being done? My sense is that BEE morphed into implicit bias, which in its most potent incarnation is close to Black Supremacy. There has been doubt in my mind for many years about whether BEE was helping or hindering the economy. In this kind of discrimination, my sense is that Afrikaners do have a valid complaint. Confusingly, because affirmative action favours the majority. So I think South Africa needs to read the tea leaves and see that it might find itself once again a pariah among the nations. Not for apartheid this time, but for marginalization and mistreatment of a minority based on skin colour. The Trump administration regards this as racism.
Ironically, South Africa hosted the world conference in 2001 about Racism, Racial Discrimination, Xenophobia and Related Intolerance. Repeatedly, the Durban Declaration that emerged mentioned that new manifestations of these vices would arise. Could this be one of them?
Both Nelson Mandela and Dr Martin Luther King stated that they were fighting for civil rights, and would equally oppose discrimination if the day should ever come when blacks were oppressing whites. Is that where run-away BEE has taken South Africa?
*Chuck Stephens, Desmond Tutu Centre for Leadership