Addressing systemic sex discrimination: Employer defences to discrimination in Canada and South Africa

• Jurisdiction: South Africa
• Date: 23 May 2019
• Published date: 23 May 2019
• Author: Coriaan de Villiers
• Pages: 175-185

Addressing systemic sex discrimination:

Employer defences to discrimination in

Canada and South Africa*

CORIAAN DE VILLIERS**

I INTRODUCTION

The Employment Equity Act

1

was recently introduced in South

Africa to promote equality in the workplace. Equality is promoted

not only by the introduction of affirmative action measures, but also

by prohibiting unfair discrimination in employment and providing a

remedy for employees who have suffered such discrimination. The

Act also includes employer defences to a claim of unfair discrimina-

tion. This chapter suggests an approach to these employer defences,

drawing on Canadian law as well as the South African legislative

framework for discrimination law. My concern is to develop an ap-

proach that will assist in redressing systemic sex discrimination. I argue

that if the judicial approach to these defences is too lenient, the purpose

of the Act will be undermined and equality in the workplace will not

be achieved.

II THE CANADIAN EXPERIENCE: ADOPTING A NEW

APPROACH TO ADDRESS SYSTEMIC ISSUES

In considering approaches to be followed in interpreting employer

defences to discrimination, it is useful to look to Canadian law, both

because there is a long history of discrimination law in Canada

and because the Canadian Supreme Court recently delivered a

ground-breaking judgment that introduced a new approach to em-

ployer defences which is specifically aimed at addressing systemic dis-

advantage.

2

In interpreting discrimination legislation, the Supreme

Court had previously developed a bifurcated approach to employer

defences in terms of which different defences applied to cases of direct

and adverse effects (indirect) discrimination.

3

In cases of direct discrimi-

nation, the applicable defence was the Bona Fide Occupational Require-

ment (BFOR) defence and in cases of adverse effects discrimination, the

* This chapter draws on aspects of my thesis submitted in conformity with the requirements

for the degree of Master of Laws, Graduate Faculty of Law University of Toronto, 2000.

** BA LLB (Cape Town) LLM (Toronto); Acting Director Women’s Legal Centre, Cape

Town.

1

Act 55 of 1998.

2

British Columbia (Public Service Employee Relations Commission) vBCGSEU, [1999] 3 S.C.R. 3

[hereinafter Meiorin].

3

See Central Alberta Dairy Pool vAlberta (Human Rights Commission), [1990] 2 S.C.R. 489.

175

2001 Acta Juridica 175

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