Gender pay discrimination cases lag despite amended legislation

Professor Stella Vettori from the Unisa Graduate School of Business Leadership (SBL)

The Employment Equity Act (EEA) known as the ‘equality clause’ was recently amended to make more explicit the remedy for unequal pay based on discrimination.  Prior to this, the act did not specifically deal with wage discrimination on the basis of race or gender, despite the Labour Court having held that there were no reasons why equal pay claims should not be claimed in terms of the Act.

However,  while discrimination, particularly gender pay discrimination, remains rife -  very few claims based on inequality in terms of remuneration and other terms and conditions of employment have been instituted in the courts.  In practice, a minimal number of claims of wage discrimination have been brought, despite evidence indicating widespread discrimination on these grounds.   In part, this is a result of the significant evidential burden involved in linking a differentiation to a listed or analogous ground.

The major obstacle for claimants in making a claim, prior to the EEA having been amended, was due to the onus of proof being placed on the claimant.   This meant that essentially the applicant would have to prove, for example, a salary difference based on gender discrimination by following a process that required using a comparator employee and establishing a causal link between the unequal remuneration and a listed or analogous ground for discrimination.  If the claimant managed to do this, the employer then bore the onus of proving that the discrimination was fair, in order to escape liability.

While the amended EEA leaves no doubt that claims for unequal pay based on discrimination can now be brought in terms of s 6(1) of the Act,  are still shortcomings.  Unfortunately, the law seems to address only one aspect of gender pay discrimination - situations where men and women do the same or similar work, or work of similar value.   The law does not address certain factors that contribute to gender pay discrimination, such as the concentration of women in sex-typed jobs such as cleaning or care-giving, which are  concentrated in lower-paying occupations.  Nor does it acknowledge the disproportionate share of low-ranking positions by women, or the low earnings relative to those of men with similar training and experience.

I do however believe there are legislative solutions.  Prescribing the criteria and the methodology for assessing work of equal value can conceivably go a long way to enabling the identification of gender discrimination in sex-typed jobs and low-ranking positions.  Additionally, fair wage adjustments could be accomplished by subjecting jobs to a rational evaluation that would assess their ‘worth’ in terms of outputs, including skills and responsibilities of the work itself.   Ultimately, such a code may encourage pay equity by raising pay levels for occupations in which women predominate.

Despite South Africa having adopted a sophisticated rights-based legislation that promotes equality, including that of gender, the fact remains that gender discrimination has deeply-embedded roots that come from the socio-cultural dictates of all groups in South Africa.  While legislation provides a solid foundation for redress, there are other important factors in the prevention of gender-based discrimination.  The law alone cannot do this and sharing knowledge around gender biases and barriers in the workplace, such as laws around equal pay, will enable ordinary employees to implement change in their workplace that moves beyond compliance reporting on equity targets.