The impact of minority status in the application of affirmative action: NAIDOO v MINISTER of SAFETY and SECURITY 2013 5 BLLR 490 (LC)

Abstract

Affirmative action measures within the workplace seek to ensure equal employment opportunities and create a workforce that is representative of South African society. Accordingly, employers need to ensure that the substantive goal of equality is achieved when implementing affirmative action. One of the challenges faced by employers is the choice of beneficiary from designated groups which is diverse and unequal within itself. This paper seeks to address this challenge by looking at the definition given to beneficiaries of affirmative action and the concept of multi layered disadvantage within the Employment Equity Act. The paper will focus on the decision in Naidoo v Minister of Safety and Security and National Commissioner of the South African Police Service which is an example of the disadvantages experienced by members of the designated groups who are also part of a minority group within the designated groups. Particular focus will be placed on the disadvantages experienced by a black female who is also part of a minority. This paper highlights the multi-layered nature of disadvantage experienced by such members of the designated groups and the need to ensure that new forms of disadvantage are not created in the implementation of affirmative action policies by using a situation sensitive approach. It argues that affirmative action as a means to an end needs to evolve with the understanding that it functions within an ever changing social and economic environment. If such changes are ignored the true beneficiaries of affirmative action will not be given recognition and the desired end of creating a workforce representative of South African society together with the goal of substantive equality cannot be realised.

Keywords: Affirmative action; minority group; multi layered disadvantage; situation sensitive; designated groups; equality; employment equity