Justifiable Discrimination—Time to Set the Parameters

• Jurisdiction: South Africa
• Citation: (2000) 12 SA Merc LJ 255
• Date: 25 May 2019
• Pages: 255-268
• Published date: 25 May 2019

Justifiable Discrimination—Time to

Set the Parameters

TAMARA COHEN*

University of the Western Cape

Introduction

'To speak of

justified

discrimination sounds strange. It is understandable to say that

behaviour that looks discriminatory at first glance really is not after all. . . . But the law

invites us to do something else as well: to take a complaint about discrimination that is in

all other respects valid, and to allow it to be overridden in the name of some competing

objective. It is an objective that is not even clearly spelt out in advance, but simply fits

into the category of being "justifiable . . .".'

1

The South African labour market, previously stigmatized by its

apartheid legacy of legally enforced inequalities,

2

has undergone a

massive transformation since the advent of the new government in 1994.

The Constitution,

3

the Labour Relations Act,

4

and the Employment

Equity Act

s

have shown a unanimous commitment to the eradication of

discrimination in employment practices. This protection against dis-

crimination in the workplace is clearly defined, which ensures that the

mistakes of the past are not repeated. Yet no right is absolute, and

permissible discrimination is sanctioned where the inherent requirements

of the job warrant it, or where it is fair or objectively justifiable.

Unfortunately, however, the legislation fails to set the parameters of

justifiable discrimination, and so leaves open to interpretation the area

of employment law that underpins the entire transformation process.

South African Legislation

Section 6(1) of the Employment Equity Act

6

states:

'No person may unfairly discriminate, directly or indirectly, against an employee, in any

employment policy or practice,

7

on one or more grounds, including race, gender, sex,

pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual

orientation, age, disability, religion, HIV status, conscience, political opinion, culture,

language and birth.'

* BA LLB LLM (Natal). Senior Lecturer in Mercantile Law, University of the Western Cape.

Sheldon Leader 'Proportionality and the Justification of Discrimination' in Janet Dine & Bob

Watt (eds)

Discrimination Law: Concepts, Limitations and Justifications

(1996) 110.

2

In its 1996 country review, the International Labour Organisation (ILO) concluded that

South Africa had the highest levels of inequality of any country in the world of which the ILO had

data (see the

Explanatory Memorandum to the Employment Equity Bill 1997

(GN 1840

GG

18481

of 1 December 1997) 7-8).

3

Act 106 of 1996.

4

Act 66 of 1995.

5

Act 55 of 1998.

6

The disciplinary section of the Act (Chapter II) came into operation on 9 August 1999: Proc

R83

GG

20339 of 6 August 1999.

7

An employment policy or practice is defined in the Act to include recruitment procedures,

remuneration, promotion, and dismissal.

255

(2000) 12 SA Merc LJ 255

© Juta and Company (Pty) Ltd