International Journal of Discrimination and the Law

At a time when the UK consults on the appropriate powers and mission of a new single equality commission, the fight against discrimination must avoid unintentionally eroding the ability of the employment tribunals to deliver accessible dispute resolution to individual victims of discrimination. This article analyses the US system for resolving employment discrimination disputes to demonstrate that dispute resolution mechanisms can be and are used in pursuit of two different and potentially conflicting projects: the project of forcing social change by eliminating structures of discrimination in society as a whole (the ‘social change’ project), and the project of providing a forum for the individual victim of discrimination to seek a quick, cheap, accessible and satisfying remedy (the ‘dispute resolution’ project). In the US, the social change project has appropriated the formal system for employment discrimination dispute resolution by emphasizing punitive (exemplary) damages, class action lawsuits, and government funded strategic litigation to send strong deterrent messages, with the result that that system has become essentially inaccessible to almost all individual victims with small claims. This negative example is offered as a warning that the fight against discrimination in the UK must carefully consider the effects of introducing ‘modern’ enforcement tools and strategic equality commission litigation to the employment tribunals on the ability of this forum to deliver the accessible individual remedies for which it was designed.

Legislation against racial discrimination makes, it is argued, a clear statement against racism in all its forms and hence has symbolic value. This is expressed in different ways, for example: a declaration of firm opposition to racism; the sending out of a clear political signal regarding the commitment to the fight against racism; a powerful symbol and a statement of intent. This Article will argue that the European Union's Race Directive1 had, at the time of its adoption, significant symbolic value because it made a clear and unequivocal statement to the Union's citizens, to its Member States and to the wider world, that the Union was committed to the elimination of racism and racial discrimination. The plans for enlargement of the European Union, with a number of States joining in 2004, added to the value of the statement: it signalled to these new Member States that the Union expects them to combat racism and racial or ethnic discrimination and to promote and adopt effective measures against such discrimination in line with the Race Directive, as this has become part of the Acquis Communautaire, the body of law that must be adopted by all States wishing to join. But does the Race Directive today, after the deadline for its implementation has passed, still have any symbolic value?

The purpose of this paper is to explore what substantive measures have been adopted by one institution in the tertiary education sector, namely the University of Stellenbosch, with what results and with what broader implications for transformation. The importance of tertiary education, access to which was minimal for disadvantaged groups under apartheid, is in providing economic and social empowerment. It therefore plays a pivotal role in the process of transformation. The primary reason for selecting the University of Stellenbosch for this pilot study2 was that, given its close links to the government during the apartheid era, the University had to demonstrate considerable change in attitudes and practice, including those affecting employment. Its profile of staff, both academic and non-academic, at the time of the passage of the Employment Equity Act in 1998, made clear that the opportunities for those from disadvantaged groups had been restricted in various ways. Significant change was therefore necessary and expected.3

This paper also seeks to test a particular transformation hypothesis, that the guardians of the dominant institutional culture-the power elite - will frustrate change where it is felt that such change will either threaten perceived core values or the power base of those guardians. Part of the study is to explore what these core values might comprise, but it was felt that perceptions of quality, of high standards and of the close association between cultural continuity and the Afrikaans language would be seen as important by the University. In exploring this aspect of cultural identity, and what had clearly been cultural racism under apartheid,4 the assumption is that explanations would be explicit, implicit and ‘dormant’.