oa Comparative and International Law Journal of Southern Africa - The role of merit in affirmative action: some pointers from the United States
The Employment Equity Act 55 of 1998 (EEA) makes provision for affirmative action of 'suitably qualified' people from designated groups. The merit principle is therefore relevant. Factors to establish suitable qualifications include formal qualifications, prior learning, relevant experience and the capacity to acquire, within reasonable time, the ability to do the job. As none of these are defined in the EEA, their meaning is unclear. In the US, the merit principle has been used by both opponents and proponents of affirmative action for almost forty years. US legislation, guidelines and regulations are examined to assist SA in more adequately defining the concept of merit at an early stage. Generally, in the US, standardised tests are used in determining 'ability'. Strong arguments have, however, been made for a broader recognition of merit beyond test scores, grades and statistics. It turns out that the US are agreed neither on the definition of merit, nor on the context to which it is desirable, nor (if it is desirable) on how to use it effectively. But some pointers can be taken fromthe US. A few recommendations are made to assist with the development of merit in South Africa.
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