Proof and Evidence of Employment Discrimination under the Employment Equity Act 55 of 1998

• Jurisdiction: South Africa
• Pages: 136-153
• Date: 03 September 2019
• Published date: 03 September 2019
• Author: Christoph Garbers
• Citation: (2000) 12 SA Merc LJ 136

Proof and Evidence of Employment

Discrimination under the

Employment Equity Act 55 of 1998

CHRISTOPH GARBERS

University of South Africa

1 Introduction

For a variety of reasons, litigation as a means to enforce the right not

to be discriminated against is, and has been for many years, subjected to

trenchant criticism. At bottom is the reality that discrimination is

extremely difficult to prove. And, as is often said, without proof there

is, in effect, no right.

With this in mind, the purpose of this contribution is, first, to show

how difficulties in proof have shaped the debate about, as well as the

development and structure of, modern employment discrimination law, a

structure embraced in toto by South Africa with the adoption and

promulgation of the Employment Equity Act 55 of 1998 ('the EEA').

This is done in parts 2 and 3 below. However, the fundamental question

still remains: have we surmounted the obstacle of proof and will

enforcement of the EEA through the courts be successful in contributing

to the eradication of discrimination at a societal level? In answering this

question it is necessary — as will be done in part 4 below — to consider

the factors which combine to determine the successful outcome of a

typical discrimination case in the South African context. Although space

precludes a detailed analysis and although much of what follows is, at

this early stage, speculation, I will argue, in conclusion, that it is not

nearly as easy as it looks to take a discrimination case to court because of

the problems of proof ingrained in discrimination litigation.

2 How Difficulties in Proof Have Shaped Modern Discrimination

Law

Although cold comfort to individuals who have unsuccessfully sought

to enforce their rights in court, the global difficulties experienced in

proving discrimination have, over the years, helped to identify

deficiencies in our understanding of discrimination and emphasized the

need to address those deficiencies. Thanks to 'proof' (or rather the lack of

it) in those countries where we looked when we drafted our dis-

crimination laws, the structure of our discrimination law reflects an

underlying process that may be described as a combination of the odd

paradigm shift augmented by (rather futile) fine-tuning. (The discussion

below draws heavily from Beatrice Vizkelety

Proving Discrimination in

136

(2000) 12 SA Merc LJ 136

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PROOF AND EVIDENCE OF EMPLOYMENT DISCRIMINATION



137

Canada

(1987) ch 1 and Shari Engels 'Problems of Proof in Employment

Discrimination: The Need for a Clearer Definition of Standards in the

United States and the United Kingdom' (1994) 15

Comparative Labor LJ

340.)

Society's first understanding of discrimination was that it only subsists

in direct individual prejudice and malice. Legally speaking, proof of this

type of direct discrimination required evidence of deficiencies in the

'mental process' of the perpetrator, most often manifest in the legal

requirement of 'intent'. Practically speaking, this raised a host of

problems. First, and this remains true to this day, proof of direct

discrimination primarily depends on circumstantial evidence. As far as a

showing of intent was required, it was only in those rare instances where

the perpetrator made his motives public that proof of direct discrimina-

tion was relatively straight-forward. Otherwise, only the perpetrator

knew what the real reasons for his actions were. Secondly, reliance on

circumstantial evidence means, in effect, proof through inference, a

process which exposed (and still exposes) litigants to the full array of

subjective vagaries of the ultimate finder of fact. Thirdly, the general rule

that similar-fact evidence is irrelevant excluded comparisons with the

behaviour of perpetrators in other like instances. As such, the essence of

discrimination — a comparison with behaviour where a material differing

factor is the alleged reason for the discrimination — was, in fact, ignored.

The shift away from the 'individual-intent' paradigm was toward the

notion of 'equal treatment'. Breaking free form the earlier subjective

norm, this approach allowed of comparison between protected and

unprotected classes and findings that proof of differential treatment

constituted strong evidence of discrimination. This model, which is the

one still used today, also implies that the requirement of intent no longer

is a prerequisite for a finding of discrimination, although it lingers on in

some jurisdictions. However, the 'equal-treatment' notion of direct

discrimination contains at least three serious deficiencies. First, the

problem of available evidence, now related to the basis of comparison

(and not the intent of the individual perpetrator), remains. In fact, a case

of direct discrimination remains, in general, difficult to prove (where the

employer does not make public his unequal treatment and the reasons for

it) or, in isolated instances, ridiculously easy (where an employer does

publicize such unequal treatment and reasons). Secondly, and even

though proof of differential treatment may support a case of direct

discrimination, the reverse is not necessarily true. In fact, as societies

continued to outlaw direct discrimination on the basis of unequal

treatment, it soon became apparent that it is quite possible to

discriminate effectively by doing exactly what was expected — treating

people equally. Thirdly, direct discrimination remains 'fundamentally

individualistic' and as such contributes little to understanding and

addressing the group-based and institutional nature of (indirect)

discrimination in society, absent individual intent.

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