Affirmative action is here to stay

2014-11-24 06:00

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Vuyani Ngalwana explains why affirmative action isn’t going away

Affirmative action is a lever for emotion. Emotion is by definition irrational. Irrationality can never sustain any argument worthy of being labelled “decent”. And decency is the stuff of which reasonable societies are made.

So to have a meaningful discourse about the subject, it is imperative that we first remove emotion.

Sadly, lawyers are not immune to emotional outbursts masquerading as argument or reason, even in the hallowed corridors of the Supreme Court of Appeal, which dismissed affirmative action in the Renate Barnard case as “a throwback to the grand apartheid design”. Thankfully, the Constitutional Court intervened and put a stop to that characterisation of what its previous judgments have labelled a constitutional measure.

So let us separate fact from fiction in the realm of affirmative action. Perhaps we should start by dumping the label “affirmative action”. Our Constitutional Court seems to prefer “restitutionary measures” or “remedial measures”.

Of course the irony is that affirmative action – as conceived by the 1965 American Executive Order under President Lyndon Johnson – now does precisely what the Executive Order sought to proscribe.

It requires that job applicants be given a leg-up on account of their race and gender, among other things.

The irony may be lost, but is the logic of the measure in hot pursuit in the race to the bottom? I think not. Here is why:

The case against affirmative action and why it’s bad

Opponents of affirmative action balk at the measure on at least four related bases, all of which are anchored in emotion. They say affirmative action amounts to “quotas”, “race and gender norming”, “race and gender profiling” and “social engineering”. These are all fictitious. Let’s see why.

First fiction: Quotas

A trenchant opponent of affirmative action defines “quotas” as “a numerical norm by reference to which a candidate succeeds or fails irrespective of merit”. Implicit in this argument is that black candidates are selected or promoted despite their not being up to the task, and that, by contrast, white candidates are not selected or promoted despite their obvious merit.

It was pushed with admirable vigour in the Barnard case from the labour court and ultimately in the Constitutional Court. The “quotas” fiction was turned into a damp squib during argument in the Constitutional Court – the same fate that befell the other three fictitious arguments.

This came as no surprise. A fictitious argument can never withstand a factual probe.

The sad thing is that this “quotas” fiction has gained so much traction in South Africa that people who are deserving candidates for advancement tend to spurn the very idea that they are affirmative action appointees. They do so in the mistaken belief that affirmative action connotes mediocrity and lack of merit.

Some rugby players, for example, have resisted being labelled affirmative action selections on the Springbok team, prompting the minister of sports to abolish what he termed “quotas” in the Springbok selection process.

I believe the University of Cape Town has had its fair share of the “controversy” regarding the admission of black students on a so-called quotas basis.

But the “quotas” thing is all a mirage. The Employment Equity Act (EEA) defines affirmative action as a measure that is “designed to ensure that suitably qualified people from designated groups have equal employment opportunities and are equitably represented in all occupational levels in the workforce of a designated employer”. Designated groups are all women, all black people and all people with disabilities.

Suitable qualification includes any one – or a combination of – formal qualifications; prior learning; relevant experience; or capacity to acquire, within a reasonable time, the ability to do the job.

When determining whether or not a candidate has the ability to do the job, all these must be taken into account. So lack of experience (a perennial fob-off against otherwise suitably qualified black people) is not a valid ground for not appointing or promoting a black person or woman or disabled person.

The distinction between “numerical goals” on the one hand and “quotas” on the other has not yet received judicial consideration. In the Barnard case, the Constitutional Court declined to give a definition to “quotas” but took its cue from the EEA. The act seems set against inflexibility in pursuit of equitable representation in the workplace. The Constitutional Court judgment suggests that quotas amount to job reservation.

The Constitutional Court was unanimous in its finding that the SAPS did not pursue numerical goals so rigidly as to amount to “quotas”.

What we learn from the Barnard case is that whether or not the implementation of affirmative action measures amounts to impermissible “quotas” rather than legitimate “numerical goals” must be decided on a case-by-case basis. There was no “job reservation” or inflexible pursuit of numerical representation. The court found that Barnard had been promoted on numerous occasions. So she could not advance the argument that her advancement was arrested by a rigid pursuit of racial representivity.

Second fiction: Race and gender norming

In the US, an illustration of “race norming” has been said to be “a system in which a white man gets a score of 80 on a test, a Hispanic gets a score of 70 and a Negro 60, but after ‘norming’, the white man has the lowest score and the Negro the highest, so he gets the job”.

“Gender norming” has been defined in the US as “translat[ing] into a man having to carry 50?pounds to qualify for the job, while a woman only needs to carry 25.”

It is not clear why this characterisation featured in the Barnard case at all because there was no suggestion that the performance scores of any candidate, including Barnard herself, had been adjusted to favour or prejudice one or other candidate.

Third fiction: Race and gender profiling

The concept of “race and gender profiling” is not far removed from “gender norming”. It connotes considering the physical characteristics or shortcomings ostensibly peculiar to a disadvantaged race or gender for purposes of advancement or appointment in preference to the race or gender with ostensibly “superior” physical characteristics.

For example, there is in some quarters a perverse belief that black people have a less developed aptitude for mathematics than white people, or that white men have no rhythm and so could not dance if their lives depended on it.

So, the argument goes, to advance black people in fields that require a highly developed aptitude for maths, you push them up despite their “natural” disinclination for the subject. And you declare white men winners of dance competitions despite their “natural” hopelessness.

Adolf Hitler is rumoured to have said a lie told often enough becomes an absolute truth that, like faith, requires no proof. The fabled superiority of the white race and inferiority of the black race spring immediately to mind. This idea of “race and gender profiling” is a manifestation of that untested “absolute truth”. Neither affirmative action in general nor the Barnard case in particular has anything to do with the physical characteristics ostensibly peculiar to a particular race or gender. So, “race and gender profiling” is a fictitious backlash against affirmative action.

Fourth fiction: Social engineering

The charge of “social engineering” conjures up the “grand apartheid design” of which the Supreme Court of Appeal wrote in the Barnard case. It is, as I understand it, a mechanism aimed at socialising people in a predetermined way. Examples include:

.?The criminalisation of interracial marriages, socialising people to marry intraracially;

.?The criminalisation of sharing ablution facilities by people of different races, socialising people to relieve themselves only with people of their own race; and

.?The prohibition, by force of law, of interracial coital acts, socialising people to have sex only with members of their own race.

That is the sort of thing “social engineering” entails. A measure that aims to achieve equity in the workplace by ensuring “the equitable representation of suitably qualified people from designated groups” of all races, including white females, hardly qualifies as “a throwback to the grand apartheid design”.

In fact, the comparison is deeply offensive to the many men and women of all races who fought for the constitutional design of equality.

Harsh reality

Affirmative action is a constitutional measure and those who have benefited from apartheid must grin and bear it.

The Constitutional Court has confirmed this in at least four judgments.

In the Barnard case, the most recent in this line of cases, the Constitutional Court put matters beyond any doubt and on many fronts on the subject of affirmative action.

I highlight just a few:

.?It held that affirmative action, on the facts of that case, does not amount to “quotas”;

.?It acknowledged that white people – even those who committed no wrong – benefited from an injustice (code for apartheid) and so must just grin and bear affirmative action;

.?It found that affirmative action is not presumptively unfair;

.?It found that affirmative action is “not a refuge for the mediocre or incompetent”;

.?It acknowledges that “past disadvantage still abounds”; and

.?It makes clear that a challenge against the implementation of affirmative action where there is over-representation of any group (which, for historical reasons, is likely to be white and possibly male in the higher echelons) is unlikely to succeed.

To those who complain about the unfairness of the whole thing because they had nothing to do with apartheid, Justice Johann van der Westhuizen sums things up – poignantly in my view – when he writes citing President John F Kennedy’s January 1962 state of the union address. “It is the fate of this generation?...?to live with a struggle we did not start, in a world we did not make.”

Affirmative action is a fact of life. It’s time we stop being apologetic or embarrassed by it.

With the first (important) victory for equality in the bag on the employment front, the next target must be affirmative action in business in the form of preferential procurement of goods and services.

It is a fight to which I shall dedicate myself if the right matter comes along. And it is a fight for which all progressive South Africans, who have the best interests of this country at heart, should gird their loins.

This is an edited address delivered by Advocate Ngalwana, SC, to University of Cape Town alumni in Joburg

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