A labor situation is coming to a head which involves a strange scenario to the mind of an American. It seems that a South African company known as Woolworths is running an ad seeking only job applicants who are "African Blacks" or "Africans, Coloureds and Indians.”

Now, to an American lawyer, this seems clearly illegal – you cannot advertise that certain races or nationalities need not apply, or that you will only consider certain races or nationalities. And even more strange perhaps, is an ad that favors – not disfavors -- the members of a protected, discriminated-against class to the exclusion of all other applicants. One is left wondering what the nature of these advertised jobs is.  

However, there is some method to this madness. The South African Employment Equity Act provides that a “designated employer,” i.e., an employer who employs 50 or more employees, must implement affirmative action measures for designated groups to achieve employment equity, and that it is “not unfair discrimination to promote affirmative action consistent with the Act or to prefer or exclude any person on the basis of an inherent job requirement.”

Woolworths’ ad would seem, therefore, to be in accordance with the law, and, indeed, be within the spirit of the law and the country's public policy which favors affirmative action.

Not so fast, says trade union Solidarity, which is starting a public campaign against Woolworths to amend the ad “so that people of all race groups will be considered for the positions.” It seems that the law, while clearly promoting affirmative action, nonetheless prohibits quotas, which Solidarity claims the ads promote.

The Employment Equity Act states that affirmative action measures must include things like identification and elimination of barriers with an adverse impact on designated groups; measures which promote diversity; making reasonable accommodation for people from designated groups; retention, development and training of designated groups (including skills development); and preferential treatment and numerical goals to ensure equitable representation. This excludes quotas (emphasis added).”

The ads here amount to “unfair discrimination,” according to Solidarity, which contend that seeking applications from only a particular racial group is a quota:

"The Employment Equity Act does not make provision for the exclusion of any race as far as applications are concerned. The current advertisements amount to an absolute quota, which the Act explicitly prohibits. The trade union has appealed to Woolworths to revisit its internal affirmative action policy to ensure that it does not discriminate unfairly against current or prospective employees of any race.”