The appropriateness of equality legislation in addressing the challenges faced by black professional employees in South Africa

Abstract

All employees aspire to work at a place of employment which is free from racial discrimination, where equal opportunity and fair treatment are not merely principles that are promoted and encouraged, but implemented actively by their employers. For a number of black professional employees in South Africa, however, currently this is merely an aspiration. Evidence suggests that black people are still subjected to racial discrimination and that their growth into the ownership and management structures of the enterprises that employ them, is insignificant in comparison to their white counterparts, despite the progressive legislative measures enacted by the legislature to ensure otherwise. The Employment Equity Act 55 of 1998, as amended, was promulgated in order to promote equal opportunities and fair treatment in employment, through the elimination of unfair discrimination and to implement affirmative action measures to redress the disadvantages in employment experienced by designated groups. The Broad-Based Black Economic Empowerment Act 53 of 2003, as amended, was enacted to promote the economic participation of black people in South Africa. The objective of this thesis is to examine the relevant provisions of the Employment Equity Act 55 of 1998, as amended, its Regulations, the Codes of Good Practice enacted in terms thereof, as well as the Broad-Based Black Economic Empowerment Act 53 of 2003, as amended, together with its Codes of Good of Practice to determine whether this equality legislation is the appropriate vehicle to address the challenges experienced by black professional employees in the private sector. The stories of black professional employees’ experiences obtained from academic literature available insofar as it relates to racial discrimination, affirmative action and black economic empowerment is discussed through the lens of Critical Race Theory. This is done with a view to determining whether the slow pace of racial transformation when it comes to black professional employees employed in the private sector is an issue that the law can address. Particular reference is made to two professions: the legal profession and the financial professions. This thesis examines the difference between the minimalist and maximalist approaches to Black Economic Empowerment (BEE). The thesis reveals the limits to the incentive structure that does not place a premium on black ownership and that allows enterprises to benefit from BEE while not really changing management structures. It argues that seen through the lens of critical race theory the current equality legislation discussed in this thesis is based on including black people in a system where privilege and power are asymmetrically distributed. It also argues that legislation in itself is unable to rectify racial injustices. It therefore demonstrates the limitations of the current equality legislation as a vehicle to address the challenges faced by black professional employees in the private sector.