Employment Discrimination Law into the Future
| Jurisdiction | South Africa |
| Pages | 237-269 |
| Date | 16 August 2019 |
| Author | Christoph Garbers |
| Citation | (2018) 29 Stell LR 237 |
| Published date | 16 August 2019 |
237
EMPLOYMENT DISCRIMINATION LAW INTO
THE FUTURE1
Christoph Garbers
BLC LLB BCom (Hons) LLM
Associate Professor, Faculty of Law, Stellenbosch University
Peter le Roux
B Iuris LLB LLM LLM
Executive consultant, ENSafrica
1 Introduction
Since the middle of the last centu ry the prohibition on discr imination
in general, and in employment i n particular, has gai ned prominence. The
initial recogn ition of protection against discr imination at inter national level
through the adopt ion of a number of important conventions2 wa s followed
by the irregula r domestication of protection against d iscriminat ion across
jurisdictions.
The development of employment discrimin ation law showed distinct
phases and stra nds:3 An initial focus on dire ct discrimin ation based on
unequal treatment and motive; a move away from t he connes of treatment
and motive to a focus on effect; the recogn ition of indirect discri mination;
an impetus to exp and the grounds of discr imination; a continuous st ruggle
to conceptualise a nd circumscribe t he acceptable limits of discr imination;
the recognition of cert ain non-obvious policies and pract ices – notably
harassment – as discrimination; the recognition of the difculties associated
with proof of discrimi nation cases followed by measures to tin ker with
the onus of proof; the development of the idea of substantive equality and
increased recogn ition and application of afrmative action as an integral pa rt
of the pur suit of equality; and , nally, where enforcement of the right not to
be discrim inated against either paved the way, or proved to be an insuf cient
foundation, for the recognit ion of certain margi nalised groups in societ y and
a proper understa nding of the prejudice associated with membership of those
groups, the inclusion of specic rights in legislation to a ddress that prejudice.
Throughout this development, pe rhaps the central theme ha s been that
discrimi nation as a legal concept is fraught a nd brings with it a number of
1 This art icle is the updated a nd final peer rev iewed version of the autho rs’ presentation t itled Employment
Equity into th e Future delivered at the ISLSSL Con ference, Cape Town, September 2 015 and the fir st
author’s presentat ion titled The Imp act of the EEA amend ments delivered a t the SASLAW Annual
Conference, Joh annesburg, July 2016, parts of whic h were previously publ ished online by co nference
organiser s in the form of a working p aper
2 Noteworthy for pr esent purposes a re the Universal Decla ration of Human Right s (adopted 10 December
1948) UNGA Res 217 (III) and, in the employme nt context, the Inter national Labour Org anisation’s C111
Discrim ination (Employme nt and Occupation) Convent ion of 1958
3 See, in genera l, C Garbers “T he prohibition of di scrimin ation in employme nt: Performanc e and prognosis
in a tran sformative conte xt” in K Malhe rbe & J Sloth-Nielse n (eds) Labour Law into th e Future: Essays
in honour of D’Arcy du Toit Juta (2012) 18 ff
(2018) 29 Stell LR 237
© Juta and Company (Pty) Ltd
challenges. These challenges include u ncertainty ab out the meaning of the
concept itself, uncer tainty about the lim its of protection against discr imination,
the difcult ies in br inging a successful discrimination case to court, and the
continued search for a sensible concept ual and practical ar ticulation between
a prohibition on discrimination and the idea of special measures or afrmative
action.
From the outset, these challenges were esp ecially acute in the “new”
South Africa. Pr ior to democracy, the organising principle of our society was
discrimi nation, which excluded the majority of the population from ef fective
and productive inclusion in the social, polit ical and economic processes –
including employment – that make up any i ndividual and any society. After
1994, the immediate societal dema nd for transformation meant t hat South
Africa jumped , and had to jump, straight i nto the deep end of equality law.
Equality was ensc onced as a foundational value,4 an organi sing principle,5
a substantive right,6 and an i nterpretive tool7 in the Constit ution of the
Republic of South Africa, 1996 (“Constitution”). This wa s followed by the
Employment Equity Act 55 of 1998 (“EEA”) and the Promotion of Equality and
Prevention of Unfair Discrim ination Act 4 of 2000 (“PEPUDA”) which aim
to regulate equal ity in some detail in, res pectively, employment and broader
society. As far as the EEA is concerne d, a comparison of its content with
other jurisdiction s is startling: sect ion 6(1) prohibits unfair d iscriminat ion,
both direct and i ndirect, on no less than 20 list ed grounds (and this list is not
ex hau st ive). 8 From the outset the EEA declared that t he onus to prove at least
the fairness of discr imination rest s on the employer.9 While not the focus of
this article, the EEA als o places a detailed obligation on designated employers10
to i mplement af rmative action and, in so doing, shows clear choices as to
who the beneciaries of afr mative action may be,11 wh at measures need to
be taken (inclusive of preferential promotion and appoint ment)12 and what
the proxy or yardstick for past disadva ntage and present success in addressi ng
past discrim ination is (“equitable representation” of these beneciaries).13
4 Section 1(a) of the Constitu tion declares (among oth ers) that
“[t]he Republic of South Af rica is one, sovereign, dem ocratic state founde d on the … va lues [of] …
[h]uman dign ity, the achievement of equ ality and the adv ancement of human r ights and freedo ms”
5 Equality, dig nity and freedo m are the three overa rching guiding p rinciples in the Con stitution – see, eg,
sections 7, 36 and 39(1)
6 S 9 of the Constit ution This section conta ins three su bstantive provi sions – equality b efore the law
(section 9(1)), affirmat ive action (section 9(2)) and prot ection agains t unfair disc riminat ion (section
9(3)-(5))
7 Section 39(2) of the Const itution states that “[w]hen int erpreting any legisl ation, and when developing
the common law or c ustomary law, every cou rt, tribunal or fo rum must promote the sp irit, purport a nd
objects of the Bill of R ights” of which, as illu strated above, equ ality is one of the core p rinciples
8 The listed g rounds are ra ce, gender, sex, preg nancy, marital s tatus, fam ily responsibil ity, ethnic or
social origi n, colour, sexual orie ntation, age, disa bility, religion, HIV s tatus, conscie nce, belief, political
opinion, cult ure, langua ge, birth We count “soci al or ethnic origi n” as two distinct g rounds
9 Section 11 of the EEA provid ed (before the 2014 amendment s) that “[w]henever unfair disc rimination is
alleged in ter ms of this Act, the employer aga inst whom the allegation i s made must establish tha t it is
fai r ”
10 As define d in section 1 Chapter I II of the EEA regulat es the implementat ion of affirmat ive action
11 “Suitably qu alified persons” (as def ined in section 20(3)) from the “design ated groups” (as defined in
sec tion 1)
12 S 15
13 S 2
238 STELL LR 2018 2
© Juta and Company (Pty) Ltd
Thus, a pressing need to u nderstand discr imination was im mediately
apparent; it cont inues to exist as a pr econdition for the concept to ou rish in
the South African c ontext. And, it has to be said, this conce ptual search was to
some extent bedevilled by one simple realit y: neither the Constitut ion nor the
EEA tells us what “unfa ir discrimination” means. T his raises a whole range of
more specic issues that have been left to the courts. These are: The scope and
meaning of the listed g rounds of discrimi nation;14 the appropriate te st for the
recognition of so-called u nlisted grounds; the quest ion whether an appropriate
comparator is always necessar y in discrim ination cases; the question as t o
how strong the link bet ween an employment policy or practice and the alleged
ground of discrim ination should be; the test for indire ct discrimin ation;
whether there is such a thi ng as “fair” discr imination (as opposed to the idea
of non-d iscrimination); whether the two listed g rounds of “justication” in
the EEA – an inherent requirement of a job and afr mative action – ar e the
only two argument s available to employers to defeat discrimi nation claims or
whether it is open to employers to argue fai rness or ju stication as general
concepts; whether the presence of these “justication” ground s means that
there is no discri mination, means that there is “fai r discrimination”, or means
that other wise unfair discrimination is justiable; and, la stly, who bear s the
onus of proving what?
With this in mind, 2014 was an import ant year for South African
employment discrimi nation law. First, we saw amendments to the EEA –
notably, for present purposes, the inclusion of the phra se “or on any other
arbitrary g round” in section 6(1), explicit provision for “equal pay” in sections
6(4) and (5), a revamped onus provision in section 11 and changes to section
10 to provide for jurisdiction of the Commission for Conciliation, Me diation
and Arbitration (“CCMA”) in most discri mination cases. Secondly, the
introduction of sections 198B and 198C i nto the Labour Relations Act 66 of
1995 (“LRA”) may yet se rve as a har binger of things to come in the eld of
employment discrimi nation. These new sections (at least to the extent t hat
they st rive to provide for equal ity of treatme nt for xed-term and part-time
employees) raise questions about the continued role, and perhaps goal, of
discrimi nation law. For example, comparative experience has shown that
xed-term and part-time e mployees are often p redominantly female and the
concept of indirect gender d iscriminat ion has been used to establish some
parity with per manent employees.15 A rguably, if specic r ights exist which
14 Of the twent y grounds lis ted, only “preg nancy”, “fami ly responsibilit y” and “HIV ” are define d in section
1 This section also contai ns a definit ion of “people with dis abilities” which h as been applied i n the
discrim ination context, but arg uably should only apply in the c ontext of affirmat ive action (where this
phrase is ac tually used) See Garbers “T he prohibition of discrim ination in employment: Per formance
and prognosis i n a transformat ive context” in Lab our Law into the Futur e 28 n 45
15 For example, in all of t he following cases the pr actices were found to have a d isproportionat e impact on
women: Je nkins v Kingsgate Ltd 2 CMLR 24 ( paying part-time wor kers a lower hourly rate than f ull-
time workers); Clark e v Eley (IMI) Kynoch Ltd [1982] I RLR 482 (retr enching par t-time worker s before
consideri ng full-time wor kers); Bilka Kaufha us v Weber von Harz [1986] CM LR 701 (requi ring fu ll-time
employment for occ upational pe nsion benefi ts); Rinner Kuhn v FW W Spezial- Gebäud edereinig ung GmbH
& Co KG [1989] IRLR 493 (granti ng sick leave only to employees working more than 10 hours per week or
45 hours per month); Equ al Opportuniti es Commission v Sec retary of State for E mployment [1994] 1 All
ER 910 (requiring par t-time employees to wo rk for three years lo nger than full -time employees to qu alify
EMPLOYMENT DISCRIMINATION LAW INTO THE FUTURE 239
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