LIST OF ACRONYMS. Chief Justice

Transcription

1 LIST OF ACRONYMS ADA Americans with Disabilities Act ADEA Age Discrimination in Employment Act AIR All India Reports ALJ Administrative Law Judges AP Andhra Pradesh ARB Arbitration Bom. Bombay BCEA Basic Conditions of Employment Act of 1997 BCLR Butterworths Constitutional Law Reports BFOQ Bona Fide Occupational Qualification BLLR Butterworths Labour Law Reports CC Constitutional Court CCMA Commission for Conciliation Mediation and Arbitration CFR Code of Federal Regulations Cir. Circuit CJ Chief Justice Co. Company CRA Civil Rights Act DBE Disadvantaged Business Enterprise EEA Employment Equity Act EEOC Equal Employment Opportunity Commission EO Executive Order FEPC Fair Employment Practices Committee GG Government Gazette HNP Hereinigde National Party IC Indian Constitution IDRA Intercultural Development Research Association ILJ Industrial Law Journal ISC Indian Supreme Court ILO International Labour Organisation Ker. Kerala iv

2 LAC Labour Appeal Court LC Labour Court LRA Labour Relations Act Ltd. Limited Mad. Madras Madh. Pra. Madhya Pradesh Mich. Michigan Mys. Mysore NAACP National Association for the Advancement of Coloured People NACO National AIDS Control Organization NP National Party OBC s Other Backward Classes OFCC Office of Federal Contract Compliance OFCCP Office of Federal Contract Compliance Programs PCEEO President s Commission on Equal Employment Opportunity PCGC President s Committee on Governments Contracts PEPUDA The Promotion of Equality and Prevention of Unfair Discrimination Act Pty Propriety PWA Public Works Administration RSA Republic of South Africa SA South Africa SALLR South African Labour Law Reports SAPS South African Police Services SC Supreme Court SC s Scheduled Castes SCC Supreme Court Case SCR Supreme Court Ruling SDA Skills Development Act ST s Scheduled Tribes UC University of California UCDLR University of California Davis Law Review UCG University Grants Commission UN United Nations USA United States of America USC United States Code v

3 USCA US VEVRA VEVRAA VCT United States: Code of America United States Vietnam Era Veterans Readjustment Act Vietnam Era Veterans Readjustment Assistance Act Voluntary Counselling and Testing vi

4 TABLE OF CONTENTS SUMMARY... ACKNOWLEDGEMENTS. LIST OF ACRONYMS Page ii iii iv PART I A HISTORY OF DISCRIMINATION SETTING THE STAGE FOR PRESENT DAY AFFIRMATIVE ACTION MEASURES CHAPTER ONE GENERAL INTRODUCTION 1.1 The Purpose of this Thesis Why a Comparative Analysis The Chapters.. 3 CHAPTER TWO A HISTORICAL BASIS FOR AFFIRMATIVE ACTION IN SOUTH AFRICA 2.1 Introduction South Africa An Overview Historical Background The Anglo-Boer War World War II Apartheid: The Consolidation of White Power Legal Restrictions An Overview 18 (i) The Industrial Conciliation Act and the Mines and Works Act 19 (ii) The Wage Act and the Public Services Act.. 20 vii

5 (iii) The Native Labour Regulation Act.. 20 (iv) The Natives Land Act and the Bantu Authorities Act.. 21 (v) The Native Urban Areas Act. 21 (vi) Bantu Building Workers Act 22 (vii) Native Labour (Settlement of Disputes) Act.. 22 (viii) Bantu Education Act State Machinery and Apartheid Computers and Labour Repeal International Law and Apartheid Internal Changes Post Apartheid pre CHAPTER THREE SETTING THE STAGE FOR AFFIRMATIVE ACTION IN THE UNITED STATES OF AMERICA 3.1 The USA An Overview Slavery The Jim Crow System African Americans and Hispanic Americans Segregation in the Industries The Construction Industry The Textile Industry The Tobacco Industry The Pulp and Paper Industry The Migration The Automobile Industry The Steel Industry Government Employment Organised Labour. 42 viii

6 3.6 Time-line of Affirmative Action Milestones Executive Orders (i) President Theodore Roosevelt ( ).. 44 (ii) Warren G Harding ( ) (iii) Executive Orders 9980 and (iv) Executive Order The Passing of Civil Rights Legislation. 46 (i) President J F Kennedy and Executive Order The Civil Rights Act (i) President Lyndon Johnson and Executive Order (ii) President Richard Nixon and the Philadelphia Order (iii) President Gerald R Ford.. 52 (iv) President Ronald Reagan The Civil Rights Time Line Milestones in the Civil Rights Movement Summary of Important Judicial Events and Other Important Dates in the History of Affirmative Action 56 CHAPTER FOUR A BRIEF HISTORY OF DISCRIMINATION IN INDIA 4.1 The Republic of India Overview Understanding Caste and the Caste System The Evolution of the Theories of Caste and Class Caste and Closure Origins of the Cast System The Religious Theory of the Caste or Varna Systems The Theory of Purity The Historical or Indo-European Theory of the Caste System The British and India.. 79 ix

7 4.5 Economic Privileges and the Division of Labour The Untouchables and Segregation Discrimination and Exploitative Forms of Labour Manual Scavenging Reform Summary. 89 PART II UNDERSTANDING AFFIRMATIVE ACTION IN SA, THE USA AND INDIA CHAPTER FIVE UNDERSTANDING AFFIRMATIVE ACTION AND ITS SYNONYMS IN SA, THE USA AND INDIA 5.1 An Overview of Affirmative Action in SA, the USA and India Understanding Affirmative Action in SA Employment Equity and Affirmative Action Equality and Affirmative Action The Beneficiaries of Affirmative Action in SA Suitably Qualified Candidates for Affirmative Action Programmes Understanding Preferential Treatment in the USA and its Definitions The Beneficiaries of Affirmative Action in the USA Suitably Qualified Candidates and the Use of Quotas Quotas and Executive Order Caste and Reservations in India The Beneficiaries of Affirmative Action in India Scheduled Castes Scheduled Tribes Other Backward Classes. 128 x

8 5.10 Reservations for the Beneficiaries Important Aspects of the Scheme of Reservation for SC s and ST s Concessions to the SC s and ST Applicants Fifty Percent Limit in Reservation to Apply to Current as well as Backlog Vacancies Public Sector Undertakings and Other Autonomous Bodies Important Aspects of the Scheme of Reservation for Other Backward Classes Reservations for Special Groups (Other than Women) The Problem of the Suitably Qualified Candidate in India Tensions in the Caste System Upward Mobility in India Affirmative Action and the Quota System in India, the USA and SA Affirmative Action vs Preferential Treatment Understanding the Importance of the Definitions PART III THE REGULATION OF DISCRIMINATION AND AFFIRMATIVE ACTION MEASURES CHAPTER SIX THE REGULATION OF AFFIRMATIVE ACTION AND DISCRIMINATION IN SA 6.1 Anti-Discrimination Legislation in SA The Labour Relations Act The Promotion of Equality and Prevention of Unfair Discrimination Act xi

9 6.1.3 The Basic Conditions of Employment Act The Skills Development Act The Employment Equity Act Constitutional Provisions A Constitutional Basis for the EEA The Constitution and Equality The Constitution and Affirmative Action Application of the EEA Scope of the EEA Designated Employers Temporary Employment Services Independent Contractors Other Groups The Beneficiaries of Affirmative Action The Regulation of Unfair Discrimination by the EEA Barriers to Employment Equity Harassment Medical and HIV Testing Psychological Testing The Regulation of Affirmative Action in the EEA Duties of a Designated Employer The Consultation Requirement The Requirements for Conducting an Analysis The Types of Information to Collect The Workforce Profile Preparing the Employment Equity Plan Reporting Compliance with the Act Affirmative Action and the Suitably Qualified Candidate Defences against Claims of Discrimination The Inherent Requirements of a Job 184 xii

10 6.8.2 Affirmative Action Affirmative Action A Defence or a Right? Affirmative Action and Efficiency Compliance with the Employment Equity Plan Affirmative Action Designated Groups Only Fair and Compulsory Discrimination by Law Discrimination Based on Productivity A General Fairness Defence 205 CHAPTER SEVEN THE REGULATION OF DISCRIMINATION AND AFFIRMATIVE ACTION IN THE USA 7.1 Anti-Discrimination Legislation in the USA Specific Legislation Prohibiting Unfair Discrimination The Vietnam-Era Readjustment Assistance Act The Americans with Disabilities Act The Age Discrimination in Employment Act The Civil Rights Act Major Features of the CRA Title I Title II Title III Title VI Scope of Coverage Title VII Scope of Title VII Citizenship or Alienage as a Basis of Discrimination xiii

11 7.4 Defences or Exceptions to Prohibitions on Discriminatory Conduct Business Necessity Bona Fide Occupational Qualification Affirmative Action What is Discriminatory Treatment or Disparate Impact? Allocation of Proof. 232 (a) Prima facie case 233 (b) Business necessity 233 (c) Alternative practice with lesser impact Title VII Violations Sexual Harassment Discrimination Race and Colour Discrimination National Origin Discrimination Other Anti-Discrimination Provisions Executive Order 11246; Title VII and the EEA Compared Policies and Practices Executive Order Affirmative Action Requirements For Supply and Service Contractors For Construction Contractors The EEOC s Affirmative Action Guidelines The EEOC s Guidelines under Title VII of the CRA Circumstances Calling for Affirmative Action Reliance on the Guidelines as a Defence to a Title VII Charge Analysis of the Anti-Discriminatory Provisions in SA and the USA xiv

12 CHAPTER EIGHT THE REGULATION OF DISCRIMINATION AND AFFIRMATIVE ACTION IN INDIA 8.1 The Constitution of India and Anti- Discrimination Principles Fundamental Rights Group Rights The Constitution and Positive Discrimination The Constitution and Reservations Reservations in Education Time Frame for Reservations Analysing the Constitutional Provisions Other Legislative Protections The Protection of Civil Rights Act The Bonded Labour System Act The Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act Discrimination in the Workforce Invidious Discrimination Sexual Harassment in India Analysis of Provisions in SA, the USA and India xv

13 PART IV THE CONSTITUTIONAL DIMENSION OF AFFIRMATIVE ACTION MEASURES CHAPTER NINE THE CONSTITUTIONAL DIMENSIONS OF AFFIRMATIVE ACTION IN SA 9.1 Affirmative Action and the Equality Principle in SA How the CC Justifies Affirmative Action Understanding the Relationship Between Equality and Discrimination The Meaning of Discrimination Problems with Proving Discrimination The Development of the South African Constitutional Equality Jurisprudence 296 (i) Establishing differentiation with a rational connection to its aim. 297 (ii) Establishing Unfair Discrimination (iii) Is the unfair discrimination justified? Equality and Differentiation 304 (i) The position of the complainants in society (ii) The nature and purpose of the power 306 (iii) The impact on the complainants (iv) The nature and purpose of the measure 307 (v) The impact on the complainants (vi) Justification Non-Citizens Rights under the Equality Clause Analysing the CC s Approach to the Equality Jurisprudence xvi

14 CHAPTER TEN THE CONSTITUTIONAL DIMENSIONS OF AFFIRMATIVE ACTION IN THE USA 10.1 Overview The Supreme Court Affirmative Action Cases The Bakke Case Fullilove v Klutznick The Weber Decision Affirmative Action and Layoffs The Wygant and Stotts Decisions The Wygant Decision The Sheet Metal Workers Case The Paradise Case The Johnson v Santa Clara Case Constitutional Turning Points The Rehnquist Court and the CRA of The Croson Case Attack on Affirmative Action in Court Hopwood v University of Texas Law School Affirmative Action Today The Grutter Case Analysing the Supreme Courts Decisions CHAPTER ELEVEN THE CONSTITUTIONAL DIMENSIONS OF AFFIRMATIVE ACTION IN INDIA 11.1 The IC and the Equality Principle Justifying Positive Discrimination under the IC Article 14 The Right to Equality in General 344 xvii

15 The Legislative or Permissible Classification of Equality Article 15 The Right to Equality in Particular The IC and the System of Reservation Reservations in Admissions Reservation and the Merit Principle The Constitutionality of Concessions for the Backward Classes Reservation and the Seniority System Extent of Reservation An Individual s Right to Equality vs Group s Right to Equality The Rules of Reservation The Rules of Reservation and Reservation on the Basis of Merit Reservations for Persons Falling Outside the Backward Classes Equality in Matters of Employment or Appointment under Article The Constitution and the Creamy Layer Criteria for Defining the Backward Classes The Problem with the Carry-Forward Rules Analysing the Supreme Courts Decisions PART V MANAGING AFFIRMATIVE ACTION BETTER CHAPTER TWELVE MANAGING AFFIRMATIVE ACTION BETTER 12.1 The Purpose of Looking to Other Jurisdictions Does Affirmative Action Spell Equality or Justice? xviii

16 Achieving Equality in a Constitutional Manner What does this entail? Proving Discrimination Analysing the Effect of the US Jurisprudence on Affirmative Action The Cost of Scepticism to Affirmative Action in the USA The Trend Towards a Colour Blind Society in US Jurisprudence The Effects of Ending Affirmative Action Prematurely The Merit Principle and Equality Quotas or Reservations and the Merit Principle Skills Development Problems with Reservations and Quotas The Creamy Layer Debate Group vs Individual Rights The Constitution and Other Forms of Equality The Advancement of Human Rights and Freedoms Equality and Socio-Economic Rights Numerical Goals or Quotas? The Better Option Why Legislative Measures Have Been a Failure in India When Must Affirmative Action End? The Governments Role in Ensuring Effective Affirmative Action Enforcement and Monitoring Affirmative Action The Right Way and the Wrong Way Conclusion xix

17 PART VI BIBLIOGRAPHY BOOKS, JOURNALS, MEDIA REPORTS, PAPERS AND THESES. 460 CASE LAW LIST OF STATUTES REGULATIONS, GUIDELINES AND CODES OF GOOD PRACTICE REPORTS AND DOCUMENTS. 510 LIST OF CHARTERS, DECLARATIONS AND INTERNATIONAL INSTRUMENTS 511 WEBSITES 513 xx