Gender equality - the forgotten component in employment equity initiatives (part 1)

By Gary Watkins who can be contacted at radwat@global.co.za and www.workinfo.com

1. Introduction

The increased participation of women in the labour market and economy in general is essential in developing a strong and broad skills base for the economy. The challenge is to ensure this leads to women's economic empowerment and does not further exacerbate inequalities between women and men. Ensuring gender equality is a social and constitutional imperative for individuals and business entities alike. The purpose of a gender policy and code of practice is to:

>> Advance the goals of equality, development and peace for all women.

>> Acknowledge the voices of all women everywhere, taking note of the diversity of women and their roles and circumstances.

>> Recognise that the status of women has advanced in some important respects in the past decade but that progress has been uneven, inequalities between women and men have persisted and major obstacles remain.

>> Reaffirm our commitment to the equal rights and inherent human dignity of women and men and other purposes and principles enshrined in the Bill of Rights, employment laws and international conventions and recommendations;

The legal case for implementing gender equality policies and practices is clear by reference to numerous Acts, Codes of Good Practice and ILO Conventions and Recommendations. These are listed in Appendix 1.

A list of legal and technical terms used in this article can be found in Appendix 2.

2. Discrimination

A gender sensitive approach to workforce management is not a goal in itself, but a means to achieve equal rights between women and men, and to promote women’s rights in particular through appropriate workplace interventions.

Section 9(3) of The Constitution sets out rights to equality. In doing so, it lists prohibited grounds of discrimination (race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, and birth). Differentiation based on any of these listed grounds by individuals or the State will be presumed to be unfair.

The Constitutional Court has held that differentiation on grounds analogous to those listed in s 9(3) will also constitute discrimination. The Promotion of equality and prevention of unfair discrimination Act, 4 of 2000 has reinforced this Constitutional Court principle by providing that prohibited grounds of discrimination includes any grounds where discrimination based on that other ground:

>> Causes or perpetuates systemic disadvantage;

>> Undermines human dignity

>> Adversely affects the equal enjoyment of a person’s rights and freedoms in a serious manner that is comparable to the listed grounds of discrimination. [Definitions: "prohibited grounds", Promotion of Equality and Prevention of Unfair Discrimination Act]

Analogous (or comparable) grounds of differentiation, which may give rise to a claim of discrimination, could include physical characteristics such as weight, height, or even "looks".

3. Types of Discrimination

Discrimination is differentiation based on illegitimate grounds. Not all types of discrimination are necessarily unfair. The Constitution, as well as, for example, the Employment Equity Act provides for legitimate grounds for differentiation, namely, to promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken [s 9(2), The Constitution].

Section 15 of The Employment Equity Act exhorts employers in general and compels designated employers in particular to adopt affirmative action measures, which must include:

>> Measures to identify and eliminate employment barriers, including unfair discrimination, which adversely affect people from designated groups (which includes women)

>> Measures designed to further diversity in the workplace based on equal dignity and respect of all people

>> Discrimination based on an inherent requirement of the job does not constitute unfair discrimination.

At the outset it is important to realise that employee behaviours are equally important in ensuring a fair and equitable workplace. No matter how fair an organisation’s policies may be, if individual managers do not apply them consistently and fairly, the organization will not be equally accessible to everyone.

Attitudes are one factor in shaping behaviour, and the attitudes and behaviours of individual employees help form the organizational climate as a positive or negative experience for designated group members.

That fact that an employer has identified and removed employment barriers to the selection, promotion and, development of employees from designated groups may not be sufficient to prevent unfair discrimination claims. The discriminatory behaviour of individual managers, unless addressed by the employer through its grievance and disciplinary procedures, may still give rise to discrimination claims by employees.

4. Discrimination may take many forms

Discrimination is to make a choice, a distinction, or some of differentiation. We all make choices, and this, every day. Discrimination becomes illegal when choices, based on prohibited grounds, limit possibilities of some groups or some individuals.

>> INTENTIONAL DISCRIMINATION is open or conscious behaviour, which is intended to be, or to result in, unfair or inequitable treatment based on the prohibited grounds. It may include harassment. Some examples are:

# Intimidation, name-calling, slurs, jokes, threats, graffiti, social exclusion, physical assault, refusing service, repeated "teasing", materials that degrade, humiliate, or exclude.

# Unequal or differential treatment is treating individuals differently on the basis of the prohibited grounds. For example:

# Asking women (but not men) about family status and childcare arrangements; requiring only people with physical disabilities to have employment medicals; automatically requiring language proficiency tests for members of designated groups.

# Systemic discrimination, on the basis of the prohibited grounds, is built into the policies and practices of an organization so that it is perpetuated automatically. It is consciously or unconsciously carried out and it unintentionally or intentionally excludes individuals or groups of individuals. Examples are:

# Inflated educational requirements (credentialism) for positions; tests which do not measure real job skills but have the effect of screening out women and members of other disadvantaged groups; lack of appropriate transportation; physical barriers; excessively lengthy experience requirements; etc.

>> Direct discrimination

Direct discrimination refers to situations or treatment that is obviously unfair or unequal. For example, if an employer won't hire someone just because they are a woman.

>> Indirect discrimination

Indirect discrimination refers to differentiation on grounds, which on the face of it, may be innocent, yet the impact of such differentiation is discriminatory. This may occur where the effect of certain requirements, conditions or practices imposed by an employer has an adverse impact disproportionately on one group or other.

For example, an employer who says that they need a person over 6 feet tall to do a job is likely to end up discriminating against women and some ethnic groups. This is because women and people from some ethnic groups are less likely to be this height than men or people from other ethnic groups. If it is possible to show that the job does not need someone 6 feet tall, or that it could easily be adapted to suit people who aren't that tall, then they could claim indirect sex discrimination or indirect race discrimination.

With Indirect Discrimination an employer can argue that there may be discrimination, but that it is actually required for the job. This does not happen very often, but circumstances where it might occur are, for example, actors who are needed to play certain characters for authenticity. The same can be true for restaurants, for example an Indian restaurant will want Indian staff rather than white staff. Or where race or gender is a genuine occupational qualification for the job, for example, employing women in an all female hostel.

>> SYSTEMIC BARRIERS include policies and practices, which intentionally or unintentionally exclude, limit and discriminate against individuals and groups. Attitudinal barriers create an environment where people may act out their prejudices, assumptions and biases. These types of barriers may be addressed through education, training, organizational change and organizational development programs.

Systemic discrimination is much subtler. It is sometimes difficult to detect because, unlike intentional discrimination, systemic discrimination is often unintentional. Even a policy or practice that was never designed to exclude the designated groups may result in systemic barriers. Employment policies and practices, which appear neutral and are applied equally may have a disparate effect on different groups. Understanding the concept of systemic discrimination, as well as other types of employment discrimination, is key in assessing the impact of systemic discrimination on your organization's employment systems.

Consider the following examples:

>> Your workplace does not have ramp entrances or washrooms that are accessible to wheelchair users. Qualified candidates in wheelchairs are therefore excluded from working for your company even though no one set up a policy to deliberately exclude them.

>> Your company has weight and height requirements (in terms of physical strength) that were instituted years ago but are no longer job related. These excessive requirements eliminate the majority of women who do not meet the height or weight requirements.

5. Policy formulation

The first step towards developing a company gender awareness policy would be to:

>> Firstly, to fully comprehend the broader implications of what constitutes gender equality; and

>> Secondly, to conduct an employment systems review of policies, procedures and practices.

Downloads

The Commission for Gender Equality published excellent and comprehensive Best Practice Guidelines for Creating a Culture of Gender Equality in the Private Sector. The Guidelines maybe downloaded at:

Best Practice Guidelines for Creating a Culture of Gender Equality in the Private Sector

In addition, readers may download a 32 page pro-forma Gender Policy and Guidelines at:

Workinfo.com's free Gender Policy and Guidelines

Other online resources, which may be downloaded, include:

>> The most common grounds of discrimination: ILO, 1996, Equality in Employment and Occupation

>> Promoting Gender Equality - An ILO Resource Kit for Trade Unions [314.28KB]. This is a zipped .exe file. Tight click the link and select "Save Target As". Once downloaded, double click the link to open the file.

>> Gender and Aids -  an UN / CEDAW Training Manual

6. Conclusion: a ‘primer’ of gender terminology

Discussions on gender equality have given rise to a number of specific concepts which need to be understood to ensure that their is a common understanding on gender issues. These are some of the common concepts that are employed.

>> GENDER ANALYSIS: Refers to the systematic process of identifying the differences in, and examining the related needs of, the roles, status, positions and privileges of women and men.

>> GENDER AND DEVELOPMENT (GAD): Refers to a planning process, which is based on an analysis of the different situations and needs of women and men. In empowering women to their position relative to men in a way that will benefit and transform society, the GAD approach seeks to base interventions on an analysis of women's and men's roles and needs - including a focus on women to address inequity.

>> GENDER AWARENESS: Refers to a state of knowledge of the differences in roles and relations of women and men, and how this results in differences in power relations, status, privileges and needs.

>> GENDER EQUALITY: Gender equality or equality between women and men means the equal employment by men and women of socially valued goods, opportunities, resources and rewards. Because what is valued differs among societies, a crucial aspect of equality is the empowerment of women to influence what is valued and share in decision making about societal priorities.

Gender equality entails that the underlying causes of discrimination are systematically identified and removed in order to give men and women equal opportunities. The concept of gender equality recognises women's subordinate position within social relations and aims at the restructuring of society so as to eradicate male domination. Therefore, equality is understood to include both formal equality and substantive equality, not merely simple equality to men.

>> GENDER ISSUES: Are revealed when the relationships between men and women, their roles, privileges, status and positions, are identified and analysed. Gender issues arise where inequalities and inequities are shown to exist between people purely on the basis of their being female or male. The fact that gender and gender differences are socially constructed is itself a primary issue to deal with.

>> GENDER MAINSTREAMING: Involves the incorporation of gender considerations into all policies, programmes and practices so that at every stage, an analysis is made of the effects for women and men. There is no area of work, which is gender-neutral.

>> GENDER PAY GAP: Closing the gender pay gap is an investment in a productive factor. Not only does it address a major source of inequality between women and men, but also it improves motivation for women workers, which can lead to increase labour productivity. It also helps desegregate the labour market and change traditional roles. The reasons for gender pay gaps can be occupational and sectorial segregation (women and men doing different jobs in different sectors), education, age or factors such as discrimination, glass ceilings, or other.

>> GENDER PERSPECTIVE: Refers to an approach in which the ultimate goal is to create equity and equality between women and men. Such an approach has a set of tools for and guidelines on how to identify the impact of the relations and roles of women and men on development.

>> GENDER PROFILING: Includes the practice of ascribing criteria or characteristics (usually discriminatory) to a person solely based on his or her membership of a particular class or category of people. Other forms of profiling (stereotyping) are equally discriminatory (all black people are naturally prone to criminal activity, all people over 65 years of age are mentally and physically incapable).

>> GENDER RESPONSIVE: Refers to a planning process in which programmes and policy actions are developed to deal with and counteract problems, which arise if the needs arising out are socially constructed differences between women and men are not adequately met.

>> GENDER SENSITIVE: Refers to the state of knowledge of the socially constructed differences between women and men, including their different needs, and use of such knowledge to identify and understand the problems arising from these differences and to act purposefully to address them.

>> GENDER-SENSITIVE INDICATORS: Refers to those pointers that help point out the extent and manner in which development programmes have met their (gender) objectives and achieved results that advance gender equity

>> TRANSGENDER: Transgender is a term used to describe anyone who lives or wishes to live as a member of the opposite gender to his or her birth gender. It may also encompass, under a broad definition, anyone who presents or behaves ambiguously in relation to commonly accepted male/female gender expectations.

Appendix 1:

Applicable codes of good practice

# In terms of the Labour Relations Act:

>> Code of Good Practice - Dismissal

# In terms of the Basic Conditions of Employment Act:

>> Code of Good Practice on Protection of Employees during Pregnancy and after Birth of a Child

>> Code of Good Practice on the Arrangement of Working Time

In terms of Employment Equity Act

>> Code of Good Practice on AIDS / HIV - December 2000 [The Code is published in terms of section 54 (1)(a) of the Employment Equity Act, 1998 (Act No. 55 of 1998)]

>> Employment Equity Code of Good Practice

>> Code of Good Practice- Sexual Harassment

# ILO CONVENTIONS AND RECOMMENDATIONS

>> Convention on the Elimination of All Forms of Racial Discrimination

>> Convention on the Elimination of All Forms of Discrimination against Women.

>> Beijing Declaration (1995)

# Charter of the United Nations

>> The Universal Declaration of Human Rights

>> Convention on the Rights of the Child

>> Declaration on the Elimination of Violence against Women

>> Declaration on the Right to Development

In addition to statutory enactments, we have a number of statutory bodies, which support constitutional democracy, and the equality of all persons.

South African Human Rights Commission [SAHRC] means the South African Human Rights Commission referred to in Chapter 9 of the Constitution.

The South African Human Rights Commission must:

>> Promote respect for human rights and a culture of human rights

>> Promote the protection, development and attainment of human rights

>> Monitor and assess the observance of human rights in the Republic.

Commission for Gender Equality [CGE] means the Commission for Gender Equality referred to in Chapter 9 of the Constitution.

>> The Commission for Gender Equality must promote respect for gender equality and the protection, development and attainment of gender equality.

The Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities established in terms of Chapter 9 of the Constitution.

The primary objects of the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities are to:

>> Promote respect for the rights of cultural, religious and linguistic communities

>> Promote and develop peace, friendship, humanity, tolerance and national unity among cultural, religious and linguistic communities, on the basis of equality, non-discrimination and free association

>> Recommend the establishment or recognition, in accordance with national legislation, of a cultural or other council or councils for a community or communities in South Africa.

To assist in addressing questions of gender equality it is essential that we have a common and agreed understanding of gender related concepts. The following represents some of the key concepts in the context of addressing gender equality.

Appendix 2: definitions

>> DESIGNATED GROUPS: means women, disabled persons, and blacks.

>> DISCRIMINATION: means any act or omission, including a policy, law, rule, practice, condition or situation which directly or indirectly:

(a) Imposes burdens, obligations or disadvantage on; or
(b) Withholds benefits, opportunities or advantages from, any person on one or more of the prohibited grounds. [Promotion of equality and prevention of unfair discrimination Act, 4 of 2000]

>> EQUALITY: includes the full and equal enjoyment of rights and freedoms as contemplated in the Constitution and includes de jure and de facto equality and also equality in terms of outcomes. [Promotion of equality and prevention of unfair discrimination Act, 4 of 2000]

>> EMPLOYMENT POLICY OR PRACTICE: includes, but is not limited to:

(a) Recruitment procedures, advertising and selection criteria;
(b) Appointments and the appointment process;
(c) Job classification and grading;
(d) Remuneration, employment benefits and terms and conditions of employment;
(e) Job assignments;
(f) The working environment and facilities;
(g) Training and development;
(h) Performance evaluation systems;
(i) Promotion;
(j) Transfer;
(k) Demotion;
(l) Disciplinary measures other than dismissal; and
(m) Dismissal.

>> FAMILY RESPONSIBILITY: means the responsibility of employees in relation to their spouse or partner, their dependent children or other members of their immediate family who need their care or support;

>> GENDER: The term "gender" is not defined in any statutes, although in various statutory enactments, it is distinguished from "sex". In more general terms, depending on the context, gender may include the meaning often ascribed to sex. When it used / ascribed a more specific meaning, gender refers to the attributes and opportunities associated with being male and female and the socio-cultural relationships between women and men. These attributes, opportunities and relationships are socially constructed and are learned through socialisation processes.

They are context specific and changeable. In most societies there are differences and inequalities between women and men in activities undertaken, access to and control over resources as well as decision-making opportunities. Gender is part of the broader socio-cultural context, which also takes into consideration factors such as class, race, economic status, ethnic group and age. In this document the term gender includes the meaning ascribed to sex unless the context indicates otherwise.

Strictly speaking, gender is distinguished from sex, which is biologically determined.

>> HARASSMENT: means unwanted conduct which is persistent or serious and demeans, humiliates or creates a hostile or intimidating environment or is calculated to induce submission by actual or threatened adverse consequences and which is related to:

(a) Sex, gender or sexual orientation; or
(b) A person’s membership or presumed membership of a group identified by one or more of the prohibited grounds or a characteristic associated with such group. [Promotion of equality and prevention of unfair discrimination Act, 4 of 2000]

>> MARITAL STATUS: includes the status or condition of being single, married, divorced, widowed or in a relationship, whether with a person of the same or the opposite sex, involving a commitment to reciprocal support in a relationship. [Promotion of equality and prevention of unfair discrimination Act, 4 of 2000]

>> PROHIBITED GROUNDS: means

a) Race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth; or
(b) Any other ground where discrimination based on that other ground:
(i) Causes or perpetuates systemic disadvantage;
(ii) Undermines human dignity; or
(iii) Adversely affects the equal enjoyment of a person’s rights and freedoms in a serious manner that is comparable to discrimination on a ground in paragraph (a) [Promotion of equality and prevention of unfair discrimination Act, 4 of 2000]

>> SEX: refers to the biological and physical differences between men and women. Sex discrimination refers to discrimination based on the physical or biological differences between men and women.