Promoting Gender Diversity Through Legislation

By Jessie Taylor

Women, non-binary individuals, and members of the LGBTQ+ community often face significant challenges in their professional lives, despite making up a significant portion of the workforce. South African legislation ensures equality in the workplace for all in a bid to create gender empowerment.

Gender Disparities Still Visible Among The Workforce

Despite making up a large portion of the working-age population and having a significant contribution to make to the economy, women and people from marginalised genders remain underrepresented in positions of authority and power. The Gender Series Volume IX: Women Empowerment, 2017 to 2022 report released by Stats SA showed that, “Women in South Africa are more likely to be unemployed than men and are less likely to participate in the labour market than their male counterparts”. The report found that despite the number of females in the working-age population exceeding males, their participation rates in the labour force remained lower at 50,7% in 2022 compared to 63,2% for males.

The report highlighted that there are still gender disparities despite the progressive laws and interventions aimed at women’s empowerment. “Empowerment of women is core to South Africa’s processes of sustainable development. Leaving no one behind means addressing multiple and intersecting forms of discrimination and inequalities,” Stats SA said. Among the challenges faced by women and non-binary individuals in the workplace include discrimination based on their gender identity, which can take the form of prejudice, harassment, or unequal treatment. Pay disparity has also recently been highlighted as a major concern.

The South African government introduced the Employment Equity Act No. 55 of 1998 to address the legacy of apartheid and ensure equitable representation of black people and women in the South African labour market. The Act governs workplace interactions aimed at eliminating gender-based discrimination. It imposes affirmative action obligations on employers, which are aimed at promoting gender equality and compels employers to set employment equity targets, which include proportionate representation of women at all levels.

The Employment Equity Act is the law that promotes equity in the workplace, ensures that all employees receive equal opportunities and that employees are treated fairly by their employers. The law aims to redress injustices of the past, by promoting equal opportunity and fair treatment in employment through the elimination of unfair discrimination and implementing measures to redress the disadvantages in employment experienced by designated groups. The Act applies to all employees and employers.

Obligations On Employers

South African legislation ensures that employment policies or practices do not discriminate against marginalised gender groups. The legislation requires employers to address two key gender equality issues in the workplace:

1.Ensuring A Safe Working Environment
Employers are responsible for addressing gender-based violence and sexual harassment in the Workplace in terms of the Code of Good Practice on the Prevention and Elimination of Harassment in the workplace. This requires employers to have clear policies and procedures for reporting harassment, as well as educating employees on gender-based harassment and sexual harassment.

2. Financial Equality
Employers are obliged to advance gender empowerment in the workplace, which includes promoting equal pay for equal work. Differentiation in pay on the basis of gender is prohibited under the Employment Equity Act and employers are obliged to remunerate employees equally for the same work. The Code of Good Practice on Equal Pay/ Remuneration for Work of Equal Value, 2015 sets out specific steps that employers should take to address any disparities in pay, including providing training and education to employees, negotiating with unions and adjusting pay levels as necessary.

Studies have shown that as companies become compliant with the Act, they experience increased diversity and proportion of female workers, increasing the company’s average female wage. JSE-listed companies are monitored for their compliance with the law and the implementation of their affirmative action plans. Employers who do not adhere to the provisions of the Employment Equity Act and related legislation could be subject to fines and/ or imprisonment, depending on the infringement – this penalty could amount to as much as R1.5 million or 2% of the employer’s turnover.

By taking steps to comply with the affirmative action imperatives such as the EEA and the codes of good practice, employers can create inclusive workplaces that help to break down the barriers that prevent women and non-binary individuals from achieving socio-economic empowerment and advancement.

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