Employment equity and elimination of discrimination: Where are women with disabilities in the hierarchy?

To remedy the structural and systemic socio-economic effects of apartheid, colonialism and patriarchy, South Africa's constitutional legal framework provides creative remedies through anti-discrimination and employment equity (affirmative action) legislation to promote equal participation of women with disabilities in the workplace. In an Equality Court hearing, Singh, an applicant for a position of magistrate, argued that she was excluded from being short-listed ostensibly because as a partially blind woman, she would be unable to meet the requirement of a valid driver's licence. Her disability status was not considered in applying the short-listing criteria. Singh successfully challenged the discrimination inherent in the short-listing process in Singh v Minister of Justice and Constitutional Development and Others (SA National Council for the Blind and another as Amici Curiae). The Equality Court ordered the Magistrate's Commission to revise its criteria for short-listing in the appointment of magistrates to reflect the necessary racial and gender composition in appointments in the judiciary as well as to have regard for the need to promote persons with disabilities in its short-listing and appointment processes. The article will consider the relationship between race, gender and disability in employment equity (with emphasis on gender and disability) against the backdrop of the Singh case. It outlines the monitoring roles of two constitutional watchdogs: the Commission for Gender Equality (CGE), and the South African Human Rights Commission (SAHRC); and the enforcement role of the Commission for Employment Equity (CEE), in promoting equal workplace participation. The analysis of the Singh case and the greater legislative scheme can be used for employees and employers generally in understanding not just the importance and need for advancement of persons with disabilities in the workplace, but also in how this category of employees is considered in the hierarchy of other transformational grounds, such as race and gender and why it is not subordinate to those statuses. The article argues for a fuller notion of diversity, than mere representivity in employment equity, which would necessitate transforming current notions of "able-bodied and able-minded" norms within workplace processes of recruitment, appointment and retention practices. It recommends accountability fostered by the monitoring of state compliance by the Chapter Nine institutions, as well as