- On November 18, 2019 /
- In Digital
Discrimination must be determined to be either fair or unfair on a case-by-case basis. There is a specific process of testing that needs to be applied to each case.
This is to determine whether there has been a differentiation between groups of people or individuals, in other words if one group of people is treated differently to another. Once it has been established that there is differentiation, it can then be determined whether or not this differentiation amounts to discrimination.
If the claim is based on one of the grounds laid out in the Constitution and the Employment Equity Act, then it is automatically presumed to be unfair and the employer must prove that it is not. For all other cases, the employee needs to lay a basis for the claim and then prove that it is discriminatory. Whether it is fair or not depends on if the issue has the potential to impair the human dignity of the employee. Here are a few examples of actual cases of discrimination and their outcomes to illustrate how a discrimination claim might play out.
In the matter of The Police and Prisons Civil Rights Union (POPCRU) and Others v the Department of Correctional Services 2011 32 IU 2629 (LAC), the Department required their male prison wardens to cut off their dreadlocks because they did not comply with the dress code. However, the same requirement was not made of female wardens. The employees in question brought a case of discrimination on the basis of religion. They claimed to be practising Rastafarians and that the rule impaired their freedom of religion. This case was held to be unfair discrimination because there was no justification to differentiate between males and females.
The Employment Equity Act specifically provides two defences, or specific instances where discrimination may not be considered unfair. These are when affirmative action measures are being taken in accordance with legislation, and where the differentiation amounts to an inherent requirement of the job. However, this is not always considered to be fair either, highlighting the need to take each instance on a case-by-case basis.
In the case of Woolworths (Pty) Ltd v Whitehead  ZALAC 4, a pregnant woman was not appointed to a permanent position she applied for. She referred an unfair dismissal case against Woolworths, alleging that she had been discriminated against because of her pregnancy. She was successful in the Labour Court, but the Labour Appeal Court ultimately held that the reason that she was not appointed, was not her pregnancy but rather the availability required by the position which she would be unable to fulfil. The continuity of the position was found to be a justified inherent requirement of the position.
Another case, the Independent Municipal and Allied Workers Union and Another v the City of Cape Town  10 BLLR 1084 (LC) , illustrates a defence of an inherent job requirement that was held to be unfair. In this case, the municipality has a policy that they do not appoint diabetics as fire fighters, and that an inherent requirement of the job is that candidates have no pre-existing medical conditions. A specific employee who applied for a job was diabetic, however, his condition was properly managed. He was denied the position. In this case, discrimination was found to be unfair because the illness was fully controlled, and the employee was still able to meet the requirements of the position.
As can be seen by these cases, determining whether or not discrimination is unfair is a complex process that takes the individual circumstances into account. It is essential to take any matter of discrimination on a case-by-case basis, as the outcome depends on the merits of the case for both parties concerned.