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

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The legislation is not lacking but its effectiveness is hampered by a lack of resources and systems to support employees in building and pursuing a case for pay discrimination, new research at Stellenbosch Business School has found.

South Africa’s comprehensive anti-discrimination legislation is considered among the most progressive in the world and contributes to the country being rated as a global leader in addressing gender inequality, including closing the gender pay gap. South Africa was ranked 18th out of 156 countries in the World Economic Forum 2021 Global Gender Gap Report.

Pay discrimination case law study

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

Together with research fellow Leana Diedericks, Bosch revealed the results of a South African pay discrimination case law study.

Despite widespread equal pay legislation, women are paid less than men across all regions of the world, with the global gender pay gap 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 claims had been brought to the Commission for Conciliation, Mediation and Arbitration (CCMA), labour courts and the Labour Appeal Court between the passing of the Employment Equity Act in 1998 and 2020.

Of these, only three were found in the employee’s favour.

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

“Our research showed that a sophisticated legal framework does not necessarily translate to equality or elimination of discrimination in practice. The legislation needs to be backed up by support mechanisms that enable employees to give effect to their rights,” Bosch said.

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Contributing factors to failure

Through content analysis of the transcripts and judgments in each of the 26 cases, the research team identified the main factors that contributed to employees’ lack of success in pursuing their claims.

Bosch said that in most of the cases employees had failed to prove that a difference in pay amounted to unfair discrimination on grounds prohibited by law, which include race and gender. On the other hand, employers were able to show that pay discrimination was fair, on legally permitted grounds such as qualifications, length of service and work performance.

Further reasons for the CCMA and courts rejecting pay discrimination cases were that employees were unable to identify an appropriate “comparator”, another employee whose work and pay can be compared to theirs, or being unable to prove the equal value of their work.

Employees were hampered in proving their cases by a lack of knowledge of the law and inability to interpret the requirements set out in law for a successful claim, together with a lack of resources to employ professional legal advice and engage expert witnesses.

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

Power imbalance

“The burden of proof on the complainant to provide the evidence and facts for the court to make a proper assessment perpetuates the power imbalance between employer and employee. Employers are generally in a stronger position to defend their cases by providing a factual foundation for differences in pay to the court.”

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

By understanding the reasons for claims failing, the researchers aimed to guide how to strengthen the support mechanisms to make the law more effective in protecting the rights of employees.

Transparency and education

She said that employers should provide greater 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.

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While trade unions were involved in supporting most of the cases studied, Diedericks said this did not improve employees’ chances of success. She recommended that trade unions ensure they have sufficient knowledge or engage legal expertise to better support their members and establish whether claims have merit.

Trade unions could also 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,” she said.

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

“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,” she said.

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 offering legal services to those unable to afford it, including Legal Aid, university law clinics and similar NGOs, need to ensure that practitioners assigned to pay discrimination cases are well versed in the complex requirements of the law.

“The implementation of the equal pay principle is both a moral and a human rights issue. Responsible employers understand that perceptions of pay discrimination lead to distrust and employee disengagement.”

“Strengthening of checks and balances in the relationship between employer and employee may result in improved remuneration governance on the part of the employer. It is in the interests of both employer and employee to strengthen mechanisms that can avert the perpetration of pay discrimination,” Bosch said.