What The Law Says: Equality Of Women In The Workplace

What The Law Says: Equality Of Women In The Workplace

Despite some poor statistics on the extent of female unemployment and the under-representation of women in senior and top management positions, South Africa is one of only twelve economies measured out of sixty-five global economies in 2022, that has seen an increase in female entrepreneurship, reflecting a positive cultural change in the perceptions of female entrepreneurs. However, there remain a number of structural challenges that need to be changed in order to address the social and gender inequalities that remain as obstacles to female progress in the workplace.

Firstly……context 

The first quarter of 2022 saw overall female unemployment at 3.4% higher than male unemployment [1] , with overall female unemployment sitting at 36,4% compared to the male unemployment rate of 33,0% [2].

Additionally, according to the Commission of Employment Equity 22nd Annual Report (2021 – 2022), females continue to be under-represented in the workforce, not only in top and senior management positions, but across all levels including those that are professionally qualified, skilled, semi skilled and unskilled [3].

Despite these depressing and demotivating statistics, the Mastercard Index of Women Entrepreneurs Report (MIWE), published during March 2022, shows some positive signs of increasing female representation in the labour market and economic transactions. The MIWE measures, reports and ranks sixty-five economies in total, including South Africa, USA, New Zealand, Canada and Russia, according to three aspects: Women Advancement Outcomes, Knowledge Assets and Financial Access and Entrepreneurial Advancement Conditions. The measurement and ranking is based on the socio-economic factors that either nurture or hinder the growth of women in business [4]. 

According to the MIWE, South Africa was one of twelve economies that saw entrepreneurial activity amongst women increase, with 11.1% of the population of working-age women being involved in the early stages of entrepreneurial activities and 21.9% of businesses being female owned [5]. However, despite seeing an increase in female entrepreneurship which reflects a positive cultural change in the way women in business are perceived,  there are a number of structural challenges that need to be changed in order to address the social and gender inequalities that remain as obstacles to female progress. Creating the right social, political and financial understanding and conditions is of critical importance for women to thrive[6].

What does the law say about women in the workplace?

The Employment Equity Act (EEA) [7]  is one of the main laws that regulates and promotes equality in the workplace and ensures that all employees receive equal opportunities and are treated fairly by employers. Together with the Code on the Prevention and Elimination of Harassment in the Workplace (the Code) [8] these laws promote equal opportunity and fair treatment at work and require employers to implement affirmative action measures to compensate for the disadvantages previously suffered by certain designated groups (meaning black people, women or people with disabilities) defined in the Act [9]. 

In short, there are three specific aspects that we will look at below which employers must comply with in order to support the continuous growth and development of women. These are critically important, given that we are only 8 years away from 2030 which is the deadline for achievement of the Sustainable Development Goals (SDGs) and in particular full gender equality [10]. 

Elimination of harassment and discrimination

Section 5 of the EEA provides that all employers must take steps to promote equal opportunities in the workplace by eliminating unfair discrimination, including harassment, from employment policies and practices [11]. 

What is harassment? 

Various types of acts can be regarded as harassment, including: slandering an employee or spreading malicious rumors, conduct that humiliates or insults an employee, preventing an employee from performing their job, holding back work-related information from an employee, excluding an employee from work or work-related activities, or threats that create fear or humiliation.  

What must you do?

The law requires you to implement a harassment policy based on the Code and to communicate the contents of this policy to all your employees.  The harassment policy must, at the least, provide for the following:  [13]: 

  • Harassment will not be tolerated in the workplace; 
  • Harassment on a prohibited ground such as gender, sex, pregnancy, marital status, religion or culture, will constitute unfair discrimination;  
  • Grievances regarding harassment will be investigated and handled in a confidential manner; and
  • It will be a disciplinary offence if an employee lodges a grievance in good faith, and is then victimized for doing this.  

Your harassment policy must also state clearly what action you will take if an employee reports any form of harassment. This must include: a process of consultation with all relevant parties, taking steps to address the complaint, and taking steps to prevent the harassment happening again [14]. If you fail to take proper steps to eliminate the harassment once an allegation has been raised by an employee, you can be held personally liable for the conduct of the perpetrator (the person who the complaint is against) in terms of section 60 of the EEA. This will be regardless of whether the harassment was only a single incident or a series of unwanted acts [15].

Your policy should set out the range of disciplinary sanctions that could be imposed on a perpetrator. This should include sanctions like a warning for minor harassment cases, or dismissal for serious cases or repeated offences. 

Finally, the policy must give guidelines to a victim of harassment of their right to lay a criminal charge or to institute a civil claim for compensation for damages that may have been caused by the harassment [16]. 

Affirmative Action 

Apart from providing an harassment policy to eliminate unfair discrimination, the EEA also says it is the responsibility of a designated employer [17] to develop and implement affirmative action measures to ensure equal employment opportunities and equal representation of designated groups at all levels. Designated groups means black people, women or people with disabilities) [18]. 

You are a designated employer if you employ 50 or more people OR your total annual turnover is more than the amount specified for your industry. For example, the annual turnover for a business in manufacturing is R30 million so if you are above this amount you will be a designated employer. You need to check the relevant  amount out for your industry. 

If you are a designated employer, you must consult with your employees and their trade unions, if this applies to your business; you must also conduct an analysis of all your policies, practices, procedures, and the work environment to identify any employment barriers that may negatively affect designated employees. After this you need to draft and implement an employment equity plan which sets out how you plan to achieve employment equity in your business. You will need to report on this either annually or once every two years on the 1st of October, depending on how many people you employ. The report must explain the progress you have made of achieving equity and how this measures against your Employment Equity Plan [19]. You also need to appoint one or more senior managers to monitor and implement the employment equity plan, and give them the  authority to take the steps  necessary to perform their duties. 

Addressing income differences – “Equal pay for equal value”

Lastly, in terms of the EEA, if you are a designated employer, you need to submit a report on ‘remuneration and benefits received in each occupational category and level of your workforce’. The main purpose of this is to be able to assess the salary gap between your highest paid and lowest paid employees and to assess where there are inequalities in salaries in terms of gender and race at the different occupational levels. This information must be included on a EEA4 form and submitted to the Department of Employment and Labour as part of your EEA report. It will help you and the Department of Employment and Labour assess whether you are upholding the principle of equal pay for work of equal value.

Closing off…. 

The high unemployment rate amongst women and their under-representation in top and senior management positions remains a serious problem in South Africa. Despite some progress on a limited and fragmented scale towards achieving more equitable representation and participation of women in business,the promise of full gender equality, as envisaged by the Sustainable Development Goals for 2030, remains a long way off.  However the growth and increase in women entrepreneurs has been recognised and reported in South Africa and it appears to be a trend that could keep growing, thanks to the changing workplace landscape and new technologies.