In the fight for equal pay, the law is not enough

With over 80% of pay discrimination claims failing in court, it is clear that despite South Africa’s progressive anti-discrimination legislation, it is simply not enough to help employees respect their right to equal pay for equal work.

There’s no shortage of legislation, but its effectiveness is hampered by a lack of resources and systems to help employees bring and pursue a pay discrimination case, according to new research from Stellenbosch Business School.

South Africa’s comprehensive anti-discrimination legislation is considered one of the most progressive in the world and helps the country be ranked as a world leader in tackling gender inequality, including gender inequality. reducing the gender pay gap. South Africa was ranked 18th out of 156 countries in the World Economic Forum’s Global Gender Gap Report 2021.

Case law study on wage discrimination

However, the goals of a progressive anti-discrimination legal framework “have not translated into the lived experiences of those the laws are meant to protect,” said Professor Anita Bosch, Women at Work Research Chair of Stellenbosch Business School.

Together with researcher Leana Diedericks, Bosch revealed the results of a study of South African case law on wage discrimination.

Despite widespread equal pay legislation, women are paid less than men in all regions of the world, overall pay gap between men and women estimated at 23% – in other words, women earn $0.77 for every dollar earned by men for work of equal value.

Bosch said only 26 pay discrimination complaints had been brought before the Commission for Conciliation, Mediation and Arbitration (CCMA), labor courts and the Court of Labor Appeals between the passage of the law on pay discrimination. employment equity in 1998 and 2020.

Of these, only three were found in favor of the employee.

“The legislation expressly prohibits unjust discrimination in compensation for work of substantially the same or equal value, and provides remedies for employees who experience such discrimination. Given the high level of protection of the law, the failure of the majority of these cases is contrary to what one would expect.

“Our research has shown that a sophisticated legal framework does not necessarily translate into equality or the elimination of discrimination in practice. Legislation must be backed by support mechanisms that enable employees to give effect to their rights,” Bosch said.

Does your organization pay women what they are worth?

Factors contributing to failure

Through content analysis of the transcripts and judgments in each of the 26 cases, the research team identified key factors that contributed to employees’ failure to pursue their claims.

Bosch said that in most cases, employees failed to prove that a pay difference amounted to unfair discrimination based on grounds prohibited by law, including race and gender. On the other hand, employers were able to prove that wage discrimination was fair, based on legally permitted grounds such as qualifications, seniority and job performance.

Other reasons the CCMA and the courts dismissed pay discrimination cases were that employees were unable to identify a suitable “comparator”, another employee whose work and salary can be compared to theirs, or that they were unable to prove the equal value of their work.

Employees have been hampered in proving their cases by a lack of knowledge of the law and an inability to interpret the requirements set forth in the law for a successful claim, as well as a lack of resources to seek professional legal advice and engage expert witnesses.

Employees’ lack of access to internal company information on pay levels and job evaluations also made it difficult for them to prove their claims, tipping the balance even further in favor of the employer.

power imbalance

“The plaintiff’s burden of proof to provide evidence and facts to allow the court to make an appropriate assessment perpetuates the power imbalance between employer and employee. Employers are generally in a better position to defend their cases by providing the court with a factual basis for pay differences.

“Employers have access to resources and expert witnesses to prove their claims. Employees’ lack of such resources affects their access to justice and their chance to successfully pursue a discrimination claim against their employer,” Bosch said.

By understanding the reasons why claims fail, researchers have sought to guide how to strengthen support mechanisms to make the law more effective in protecting employee rights.

Transparency and education

She said employers should provide greater transparency on pay policies, grades and pay differences. This would allow employees to decide whether their concerns are well-founded to take to court and would force employers to comply with equal pay laws, reducing the need for legal action.

Equal pay is not a requirement - it's a right

Although unions were involved in supporting most of the cases investigated, Diedericks said it did not improve employees’ chances of success. She recommended unions ensure they have sufficient knowledge or seek legal expertise to better support their members and determine whether grievances have merit.

Unions could also partner with employers to provide education and awareness about pay differences and the criteria for complaints of discrimination.

“Focusing on compensation education by employers, with the help of job evaluation experts, would also go a long way to better informing employees about job evaluations, how pay is determined. and potential discrimination,” she said.

Diedericks also advised employers to better understand anti-discrimination laws and permissible justifications for pay differentiation.

“Employers could ensure that discrimination is not perpetuated by carefully examining the reasons for pay gaps in their workplace, including seniority. In this regard, historical inequalities of a structural nature need to be carefully considered and addressed,” she said.

The government should strengthen initiatives that promote access to justice, including ensuring that institutions such as Legal Aid SA are adequately funded and resourced.

Legal assistance

In turn, institutions providing legal services to those who cannot afford them, including legal aid, university legal clinics and similar NGOs, should ensure that practitioners dealing with pay discrimination cases familiar with the complex requirements of the law.

“Implementing the principle of equal pay is both a moral issue and a human rights issue. Responsible employers understand that perceptions of wage discrimination lead to distrust and disengagement among employees.

“Strengthening checks and balances in the employer-employee relationship can result in better compensation governance on the part of the employer. It is in the interests of both employer and employee to strengthen mechanisms that can prevent the perpetration of wage discrimination,” Bosch said.

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