1. Employment Equity Act [1]
· Protecting and promoting constitutional values in the workplace.
· It is designed to overcome the disadvantages that have been endured by historically marginalized groups such as people with disabilities.
· Seeks to promote the constitutional right to equality
· Eliminate unfair discrimination in employment
· Ensures the implementation of employment equity to redress the effects of discrimination and to achieve a diverse work force broadly representative of people of South Africa.
Within the EEA there are various categories of people that it seeks to provide empowerment to. These are black people, women and disabled people, which are off emphasis here. People with disabilities who are employees are entitled to a range of affirmative action measures, including reasonable accommodation. According to the Act, reasonable accommodation means any modification or adjustment to a job or to the working environment that will enable a person from a designated group to have access to or to participate or advance in employment.[2] Designated employers are under an obligation to take positive steps in this regard.[3]
Hence, the purpose of the Act is to achieve equality through affirmative action. The unstated assumption in the application of affirmative action is the intention to remove obstacles to entry into or advancement in employment without fundamentally changing the nature of work and how it is to be performed. Affirmative action does not usually concern itself with providing support to a person with disability so that the person can in the first place enter the job market. While affirmative action may work well with women and black people, external barriers in the employee-employer relationship create disadvantages that make it difficult for disabled persons to establish their employability.[4]
The Limitations of Affirmative Action with regard to people with Disabilities
The application of affirmative action is intended to remove obstacles into employment without fundamentally changing the nature of work. Many people with disabilities have no qualification that can be accommodated by making reasonable accommodation. Although reasonable accommodation is a crucial component in affirmative action, it does not address the impediments faced by people with disabilities. People with disabilities will require more than affirmative action and reasonable accommodation if substantive equality is to be achieved.[5]
Reasonable accommodation is a primarily non-discrimination principle and an adjunct to the achievement of substantive equality. In the South African context the duty of reasonable accommodation must be an enforceable duty rather than a mere privilege at the mercy of the employer. Thus the formulation of a question whether the employer has provided reasonable accommodation should be seen as an integral part of determining whether the employer has explored less discriminatory options prior to the discriminatory conduct in question.[6]
2. The Constitution
· The duty to make reasonable accommodation is linked to the principle of proportionality.
· Regarded as an implied duty in a statute such as the EEA, which is required to give practical expression to the achievement of equality under the constitution in the context of workplace.
· Prior to the new constitutional dispensation, the South African legal system intersected with disability mainly in relation to compensation for disabilities arising from the work place as well as in social security provisions.
3. The Compensation for Occupational Injuries and Diseases Act
· This act governs compensation for disability arising from a disease or injury got in the scope and course of employment.
4. The Social Assistance Act
· Determines eligibility for a disability grant for persons who suffer from a physical and mental disability for a period of 6 months or more, which renders them unable to sufficiently provide for their own maintenance. Other than linking ability with functional incapacity these statutes are a limited utility when it comes to determination of disability for the purposes of reasonable accommodation.
[1] Ngwena. C ‘Equality and Disability in the Workplace: A South African Approach’ ( A seminar presentation in the school of law , University of Leeds , England , 29th November 2004. Available http://www.leeds.ac.uk/disability- studies/archiveuk/ngwena/Leeds%20staff%20seminar%20Revisions.pdf
[2] Section 1 of the EEA.
[3] Section 1 of the EEA.
[4] Ngwena C 2004 ‘Equality for people with disabilities: the limits of the employment equity Act of 1998’ (2004), 29 (2) Journal of juridical science at 187 -193.
[5] Supra.
[6] Pretorious .2000 et al Employment Equity Law 2001.
