Understanding the Code of Good Practice under the Employment Equity Act – A Tool for Empowerment
Most South Africans would agree that the task of overcoming discrimination and prejudice should not be confined to correcting and remedying such discrimination after the fact. While it is always necessary to have laws that correct the wrong done more often it is simply too little and too late. It is therefore necessary that People with Disabilities (PWD) are armed with the necessary knowledge to protect their rights.
One of the most important laws for People with Disabilities is the Employment Equity Act, which came into effect in 1999. Although the Act seeks to eliminate unfair discrimination in employment and to achieve a diverse work force broadly representative of everyone, it can be complex and confusing to ordinary people. It became necessary to develop a Code of Good Practice to guide employers who are challenged by potential employees who are People with Disabilities.
The Code is a guide for both employees and employers on promoting equal opportunities and fair treatment for People with Disabilities as prescribed by the Employment Equity Act.
The Code is not binding nor is it a regulation, but it has very pursuance value when interpreting the Act. The Code is very useful when the employer is developing the Employment Equity Policies and programmes. I will highlight what is considered critical aspects and urge readers to familiarise themselves with the full text of the Code.
One of the vexed and complex issues confronting the employees is the definition of disability. Fortunately when this issue was debated, PWD were intimately involved and we moved away from the Medical model of defining disability as a medical condition, based on medical diagnosis and emphasising the impairment. We came up with a novel definition to emphasise the impact of disability on entry and advancement in employment.
People with Disabilities are defined as people who have a long term or recurring physical or mental impairment which substantially limits the prospect of entry into, or advancement in employment.
The long-term or recurring physical mental impairments are concepts that are fairly straight forward and do not need any further elaboration. Now let’s analyse what the term means. The impairment would be substantially limiting if the nature, duration or effect substantially limits the persons ability to perform essential functions of the job for which they are being considered.
Some impairments are so easily controlled, corrected or lessened, that they have no limiting effects. For example, a person who wears spectacles or contact lenses does not have a disability unless even with spectacles or contact lenses the person’s vision is substantially impaired.
An assessment to determine whether the effects of impairment are substantially limiting, must consider if medical treatment or other devices would control or correct the impairment so that its adverse effects are prevented or removed.
For reasons of public policy certain conditions or impairments may not be considered disabilities. These include but are not limited to-
(a) Sexual behaviour disorders that are against public policy;
(b) Self-imposed body adornments such as tattoos and body piercing;
(c) Compulsive gambling, tendency to steal or light fires;
(d) Disorders that affect a person’s mental or physical state if they are caused by current use of illegal drugs or alcohol, unless the affected person is participating in a recognised programme of treatment;
(e) Normal deviations in height, weight and strength; and conventional physical and mental characteristics and common personality traits.
An assessment may be done by a suitably qualified person if there is uncertainty as to whether impairment may be substantially limiting.
This is an issue that has to be handled with care by employers but equally so by PWD need to understand what reasonable accommodation is. It is the source of the misunderstanding between an employer and employee. Is it the employer’s responsibility to provide transport to work for PWD while not providing it to non-disabled employees? All that the Act and the Code state is that employers should reasonably accommodate the needs of people with disabilities. The aim of the accommodation is to reduce the impact of the impairment of the person’s capacity to fulfil the essential functions of a job.
Reasonable accommodation requirement applies to applicants and employees with disabilities who are suitably qualified for the job and may be required-
(i) During the recruitment and selection processes;
(ii) In the working environment;
(iii) In the way work is usually done, evaluated and rewarded; and
(iv) In the benefits and privileges of employment.
Examples of reasonable are the following but not exhaustive:
(i) Adapting existing facilities to make them accessible;
(ii) Adapting existing equipment or acquiring new equipment including computer hardware and software;
(iii) Re-organising workstations;
(iv) Changing, training and assessment materials and systems; restructuring jobs so that non-essential functions are re-assigned;
(v) Adjusting working time and leave; and
(vi) Providing specialised supervision, training and support in the workplace.
The Code covers other important subjects and provides some guidelines on the recruitment and selection process. This include the specific outlining of the essential requirements of the job which had to clearly spelt out, accessibility of advertising to ensure that PWD are given the equal opportunities to apply jobs.
There are also guidelines on Medical and Psychological testing. This has to be done strictly in terms of the Act and employers have to ensure that such tests are not used to unfairly exclude PWD it also gives useful parameters about confidential information on the health and medical status of a person. Such information should only be gathered for real and necessary purposes. Employers must protect such information and destroy it when it is not required. Such information should not be disclosed without the written consent of the employee.
It is better to have basic knowledge to prevent any unfair discrimination than to wait until the event when it is too little and too late. PWD have to be experts in their own struggle for equal opportunities, but they must know their tools and know them well. These laws were drafted with the direct input of disability experts and now PWD should use them to protect and advance their gains.