Pay inequality still persists
WAGING WAR: SINCE 1998, ONLY THREE OF 26 DISCRIMINATION CLAIMS WERE SUCCESSFUL
➳ Employers should be transparent about differences in remuneration.
Astudy into South African pay discrimination case law conducted by Stellenbosch Business School has determined that the “equal pay for equal work” rhetoric and anti-discrimination legislation has not had the desired effect.
The 2021 World Economic Forum Global Gender Gap Report ranked South Africa 18th out of 156 countries in terms of having progressive anti-discrimination law.
Professor Anita Bosch, Women at Work research chair at Stellenbosch Business School, says between the passing of the Employment Equity Act in 1998 and 2020 26 pay discrimination claims have been lodged at the Commission for Conciliation, Mediation and Arbitration or labour courts. Only three of those cases were ruled in the employee’s favour.
“Our research showed a sophisticated legal framework does not necessarily translate to equality or elimination of discrimination in practice,” she said. “The legislation needs to be backed up by support mechanisms that enable employees to give effect to their rights.”
Most employees failed to prove a difference in pay amounted to unfair discrimination on grounds prohibited by law, which include race and gender.
Employers often succeeded on legally permitted grounds, like qualifications, length of service and work performance.
Perpetuating the power imbalance
Cases also fail because employees struggle to identify colleagues whose work and pay their own can be measured against, preventing them from comparing the value of their work. To further dampen employees’ cases, they are hampered by a lack of knowledge of the law, the resources to employ legal teams and access to company information on pay grades and job evaluations.
“The burden of proof on the complainant to provide evidence and facts for the court to make a proper assessment perpetuates the power imbalance between the employer and employees,” says Bosch.
What to do?
To make the law more effective, Bosch says, employers should provide more transparency on pay policies, grades and differences in remuneration.
“This would enable employees to decide whether their concerns [have] enough merit to be taken to court as well as compel employers to comply with equal pay laws, reducing the need for court cases.”
Leana Diedericks, research fellow at Stellenbosch Business School, says trade unions should also ensure they have the knowledge or engage legal experts to support their members and establish merit.
She says trade unions could partner with employers to provide education and awareness on pay differences and the criteria for discrimination claims.
“A focus on remuneration education by employers, with the assistance of job evaluation experts, would also go a long way to better informing employees on job evaluations, how pay is determined, and potential discrimination,” says Diedericks.
“Employers could ensure that discrimination is not perpetuated by carefully considering the grounds for pay differentials in their workplaces, including length of service. In this regard, historical inequalities of a structural nature should be carefully considered and addressed.”
Bosch says the implementation of the equal pay principle is a moral and human rights issue and perceptions of discrimination lead to employee disengagement.
“It is in the interests of both employer and employee to strengthen mechanisms that can avert the perpetration of pay discrimination.”