AFFIRMATIVE action may, in the short to medium term, change the colour and composition of the workplace, but its ability to fundamentally change the structure of decision- making within the workplace was unclear, a lawyer at a labour law seminar said yesterday.

Shamima Gaibie, senior director at Cheadle Thompson & Haysom, said it was arguable whether affirmative action's long-term aim was to achieve substantive equality, but its effect was not automatic.

"Affirmative action, depending on how it is implemented, also has the ability to diminish inequalities between middle-class blacks and whites, and indeed to entrench the disparity between the rich and the poor," she said.

There had been a number of challenges to affirmative action, mostly by white men who had sought to set aside their nonpromotion by attacking affirmative action policy .

Ms Gaibie said affirmative action was a fundamental step towards equality and some parameters were necessary to ensure it furthered substantive equality fairly and legitimately rather than entrenched inequality illegitimately.

"This function can arguably be performed by a balancing act, now known as the proportionality test. The proportionality principle requires an affirmative action policy to be constructed and to be tailored to meet legitimate ends. In other words, one would need to ask whether the means to achieve such aims are proportionate to meet the ends," she said.

When the Constitutional Court considered the issue of affirmative action when it was first challenged, the court held that an employer must demonstrate that the measure targeted people who had been disadvantaged by unfair discrimination and whether it promoted the achievement of equality, she said.

"Our courts have held that the refusal to promote an employee in circumstances where an employment equity plan was not yet in existence constituted unfair discrimination, and that a refusal to promote an applicant on the basis of an affirmative action measure in circumstances where the employer's affirmative targets had been reached and (the applicant was) the best candidate for the post, was arbitrary and unfair."

Wits law lecturer Muriel Mushariwa said the concepts of efficiency in the workplace and representivity should not be placed in opposition to each other.

mabuzae@bdfm.co.za

Affirmative action has the ability to diminish inequalities between middle-class blacks and whites