Patrick Hamunyera Ntupi
Affirmative action is a policy designed to address historical discrimination by promoting equal opportunities for individuals from previously disadvantaged groups. Its aim is to achieve equal opportunity in employment in accordance with Article 10(2) and Article 23(2) of the Namibian Constitution; redress the conditions of disadvantage in employment arising from past discriminatory laws and practices; and eliminate barriers in employment.
Affirmative Action came into effect in 1998. Its purpose is twofold: ensure equal opportunities for historically disadvantaged groups and to introduce procedures that support the elimination of discrimination in employment. The later objective can be traced to sect 5(1)(f) and (2)(a) of the Labour Act, 11 2007.
Workplace diversity refers to the presence of individuals from different backgrounds, including but not limited to race, ethnicity, gender, age, sexual orientation, and disability. It encompasses a wide range of characteristics that contribute to rich perspectives and talents within an organisation. Embracing diversity is not just a moral imperative; it is also a strategic advantage in today's globalised and interconnected world. Diverse workplaces have been shown to be more innovative, adaptable, and successful in navigating complex workplace challenges.
By embracing diversity, companies can tap into a wealth of knowledge and creativity.
Impact on diversity
AA has played a crucial role in increasing workplace diversity across various industries. This in turn has a beneficial effect to all. Studies have shown that companies with diverse workforces tend to outperform their less diverse counterparts in terms of financial performance and innovation. Research by PWC in 2019, found that 94% said diversity brings unique perspectives. Additionally, research that studied 600 business decisions made by 200 teams found that the decision-making of diverse teams outperforms others up to 87% of the times.
Adverse impact
While Affirmative Action (AA) aims to promote equality and diversity, it is essential to acknowledge and address the concept of adverse impact. Adverse impact refers to un-intentional discrimination that occurs when a seemingly neutral employment practice disproportionately affects some individuals from a protected group. E.g. if a hiring test results shows a significantly lower pass rate for a particular racial or ethnic group, it may be considered to have an adverse impact.
However, HR practitioners seem to be grappling with this issue in the recruitment process, albeit it could be un-intentional leading to discrimination. This has culminated in a growing discontentment among a cluster of designated group, who feel left out, consequently, defeating the second objective of the AA Act.
The 4/5th rule
The 4/5th rule is a widely accepted standard in other countries and it’s used to determine whether a particular employment practice has an adverse impact or not. According to this rule, a selection rate for any protected group that is less than 80% of the rate for the group with the highest selection rate is considered evidence of adverse impact. This threshold serves as a benchmark to identify potential disparities. This rule is significant in the context of AA, because it provides a quantitative measure to assess the impact of employment practices on diverse groups. It helps organisations identify potential discrimination and take appropriate action.
To understand how the 4/5th rule work, let’s say company A has 100% of persons from designated group of which 70% of persons are from one ethnic group, and it want to fill 25 vacant posts wherein 500 applicants are from this group and 100 from the less represented group. In order to meet the requirement of adverse impact, it should hire a minimum of 16 persons from the less represented group and 9 or less from the majority group. The formula is as follows: 9/500x100= 1.8 %, 1.8/2 =0.9% or 10% and 16/100x100=16%, 16/2=80%.
Criticisms
AA Act seems to be promoting reverse discrimination within the designated group. Contrary to section 18(2)(a) of AA Act, no. 29 of 1998, read with section 5(1)(f) & (2)(a) of the Labour Act, no. 11 of 2007; which refers to racially disadvantaged persons as all persons who belong to a racial or ethnic group. Albeit this, the later has been relegated. This in turn defeat Article 23, line 6-7 of our Constitution which talks of “achieving a balanced structuring of the public service. Twenty-five years down the line, evidence of despondency is slowly, but surely emerging.
Hence, the prospect to amend the Act and make vital changes still exists. By understanding the history, purpose, and impact of AA, we can contribute to a more equitable employment for all. Consequently, as we anticipate to amend the AA Act, these factors herein and others; requires considerations.
* Patrick Hamunyera Ntupi is a Deputy Director in the Ministry of Home Affairs. He holds a B-Tech in Human Resource Management and currently in his final year pursuing an MBA at NUST. The views expressed herein are entirely his, and do not represent those of the employer.