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To BEE or not to EE; that is the question.

How BBBEE has compromised Employment Equity resulting in the marginalization of Diversities most forgotten cousin, Disability

By Jeremy Opperman
July 2013

Can Companies comply with both the Employment Equity Act (EEA) and BBBEE? Theoretically, one would imagine the answer would be yes, because the Department of Labour has not rescinded the EEA nor has it slackened its pressure on companies to submit their EE reports. At the same time all companies and organizations need to in some way comply with and work toward populating their BBBEE scorecards if they wish to be competitive. However, the reality is that there is far greater incentive to oblige and comply with BBBEE criteria than EEA obligations. This is demonstrated by the fact that the Department of Labour is becoming increasingly threatening about non reporting. The problem is the frequent referencing of Employment Equity within BBBEE language. companies are increasingly confused as to which to comply with, or there is an assumption made that by complying with BBBEE, will, given that its Codes clearly quote, “employment Equity” that it must therefore be compliant with the EEA and its reporting mechanisms. Unfortunately, the hard fact is that they do not compare or work in concert at all.

The following essay seeks to unpack this constantly overlooked compliance anomaly and hopefully will provide some insight and warning against a serious ongoing diversity crisis.

Notwithstanding the terminology employed by Statement 300; “the general principles for measuring Employment Equity”, the insistence that BBBEE requirements are somehow compatible or in concert with Employment Equity activity is simply incorrect and misleading and highly prejudicial to previous and current EEA obligations.

Some background is required here. The 1990’s were pivotal in Disability rights History. Many countries began to pay overarching legislative attention to Disability rights. These rights issues of course, are not confined to the individuals disability alone but highlights and attempt to address the societal barriers faced by people with Disabilities; Including welfare, housing, transport, Health, education, and of course employment. At the same time, the United Nations, was also well on its way to establish what would become the UN Convention on the Rights and Dignity of Persons with Disabilities in 2007. South Africa too, took part in this global consciousness and made the precedent setting move of incorporating Disability into our first Democratic Constitution 1996. In 1998 the Employment Equity Act no 55 was promulgated, and notably incorporated Disability as a designated affirmative action group, along with Black people and Women. Also importantly, no disaggregation was made in terms of whether the person with the Disability was white or Black. The reason for this is simple, The Constitution and Employment Equity Act, recognized that barriers to Disability inclusion were not confined to apartheid alone but to historically entrenched societal barriers common to most countries in the world. This is amply demonstrated by the fact that even today; white or black, students with physical and sensory Disabilities are excluded from almost all mainstream education facilities. White or black, people with (particularly) physical Disabilities are still unable to access the overwhelming majority of public transport and most other facilities and amenities in the public and private sectors. Finally, white or black, persons with Disabilities have the highest rate of under or unemployment in the country.

"...the exclusion of black people with disabilities is a deliberate deviation from the current Interpretive Guide to the Codes of Good Practice 2007”. This extract from Code 300, highlights the deliberate exclusion of the measurement and reporting of levels of employment of (Black) people with Disabilities. Once again, this is in total opposition to principles and values of the EEA, and amounts to nothing more than an invitation to simply count heads and enter into the worst kind of numbers game playing.

One of the most crucial elements of the Employment Equity Act, is that it was identified at the beginning, that an affirmative action mechanism such as those employed by the EEA should never become a simple numbers game, with merely counting the affirmative action candidates. Therefore careful attention was and is paid to ensuring that levels of employment are taken into account in all EEA reporting and do not exclude Disability from these rules. The seriousness of this oversight cannot be overstated. Historically, people with Disabilities have been seen as not being particularly productive in the world of work and for the most part have been excluded resulting in very limited employment opportunity. For generations, this prevailing mindset has set the stage for widespread generalization and stereotyping and the net result, with few exceptions is that where the few employment opportunities exist they are invariably at a lower level regardless often of the training or skill of the individual with the Disability. By removing the directive to pay attention to levels of employment for Disability, companies, when populating their BBBEE scorecards, have no incentive to pay attention to or put effort into altering these stereotypes. Once again, this results in (black) people with Disabilities being relegated to the lowest levels of employment, with little hope of change as long as there is a complex compliance mechanism such as these codes, preventing it. .

The stipulation, in Code 200, that 2% of the workforce be made up of black people with Disabilities. As has been stated above, this requirement works against original EEA compliance obligations in a number of ways. Firstly, the EEA does not demand a specific target to be reached in terms of the employment of persons with Disabilities, and if it did, it would have had to include white people within that target as they legitimately fell within the scope of the Act. Secondly, as has been noted above, with little direction or incentive to raise the levels of employment for (black) persons with Disabilities, the additional pressure of targeting will simply perpetuate the stereotypic and menial disability employment trends, specifically for black people with Disabilities.

Finally, Government, in 2000, notwithstanding that there were no formal targets or quotas, put out a national goal that by 2005, 2% of Governments workforce would be made up of persons with Disabilities. It is important to note that white people were included in this goal. Sadly by 2006 and indeed to the present, less than 1% of Governments workforce was made up of people with Disabilities, drawn from all racial sectors. What this illustrates is that with significantly compromised historically disadvantaged sectors such as Disability, quotas and targets alone cannot achieve automatic and equitable inclusion into the world of work where generations of ignorance, prejudice and fear on the part of the employer, have retarded the ability to equitably enjoy the skill, training and right to work of persons with Disabilities. Therefore by fixating on BBBEE requirements in populating their scorecards, companies are forced to disregard good EEA practice of including both White people with Disabilities as well as to consider their levels, while they scramble to somehow fill an impossible 2% target. This can only result in an increasingly frustrated and discriminated sector. To further and deliberately drive a racial wedge into an already weak and compromised sector, but which has Constitutional and global support and attention, makes no political or economics sense.