When Does Affirmative Action in Favour of Certain Employees Become Unfair Discrimination Against Others?1
| Date | 01 September 2001 |
| Published date | 01 September 2001 |
| DOI | 10.1177/135822910100500305 |
| Author | Darcy Du Toit |
International Journal
of
Discrimination and the Law, 2001, Vol. 5, pp. 147-166
1358-2291/2001 $10 .
© 2001 A B Academic Publishers. Printed in Great Britain
WHEN DOES AFFIRMATIVE ACTION IN FAVOUR OF
CERTAIN EMPLOYEES BECOME UNFAIR
DISCRIMINATION AGAINST OTHERS?1
DARCY DU TOIT
Professor
of
Law,
Law
Faculty, University
of
the Western Cape, South
Africa
Besides the oft-quoted passages
in
George
v.
Liberty Life [(1996)
17
/U
571
(IC)],
which correctly stipulated that it
was
only the 'equal' enjoyment
of
rights that
was
the
legitimate purpose
of
affirmative action policies, South African law is still developing
clear principles that would underpin fair affirmative action policies. Or, in other
words, the courts have not yet definitely ruled when it
is
not unfair to discriminate
against employees
who
are
not
of
the race targeted
by
affirmative action policies.2
ABSTRACT
The
paper is concerned with the practical question
of
the circumstances under
which measures which
might
otherwise have amounted
to
unfair discrimination will
amount to affirmative action
and
will therefore
be
lawful. It addresses a
number
of
conceptual issues, including whether affirmative should
be
understood as a limita-
tion
on
the right
to
equality
or
an expression thereof; and the differing interpreta-
tions
of
'discrimination' by Langa
DP
and
Sachs J in City Council
of
Pretoria v
Walker, in both cases preferring the latter approach. Reviewing the relevant case
law up to
May
2000,
it
considers whether the approach laid
down
by
the
High
Court in Public Servants Association
of
SA v Minister
of
Justice
can
survive the
promulgation
of
the final Constitution and the Employment Equity Act. It also
doubts whether the requirement
of
individual disadvantage in respect
of
affirmative
action measures is (still) appropriate
and
suggests that underrepresentation
of
groups that suffered unfair discrimination is a preferable criterion.
INTRODUCTION
The
title
of
this
paper
begs an important question.
It
is widely pre-
sumed that there is a contradiction between affirmative action and
the
right
of
employees
not
to suffer unfair discrimination.
The
right to
implement affirmative action measures, from this standpoint, consti-
tutes an exception to, and limitation upon, the right to equal treat-
ment. Is this necessarily so?
The
question
may
seem
moot
at first sight.
The
difference
between affirmative action and unfair discrimination, it
may
be
148
argued, is a question
of
fact. Measures that
amount
to
unfair
discrim-
ination
in
certain circumstances
may
in
other circumstances
amount
to
affirmative action.
Whether
they resort
on
one
side
or
another
of
the dividing line will depend
on
the facts
of
each
case.
But
this only begs a further question:
how
are those facts
to
be
assessed?
Which
principle should
be
followed in deciding
the
nature
of
disputed measures?
There
is,
it
is submitted, a fundamental issue tied
up
in
the pro-
cess
by
which
a court addresses the very question
of
fact.
It
is this:
what
is primary -the right
to
individual equality,
or
the
broader
social purpose
of
promoting 'substantive; equality
between
groups
who
have
been
subject
to
unequal treatment
in
the
past?
If
the first approach is followed, affirmative action does
indeed
emerge
as a limitation
on
the right
to
equality.
It
then
follows
from
general principles
of
constitutional interpretation
that
it
must
be
con-
strued restrictively and,
if
so, certain presumptions
must
operate
in
favour
of
non-beneficiaries
who
challenge affirmative action
meas-
ures.
If
the
second approach is followed,
on
the
other
hand, affirmat-
ive action emerges
not
as an exception to
the
right
to
equality
but
as
a manifestation
of
it.
From
this standpoint, indeed, failure
to
imple-
ment
affirmative measures
may
in
certain circumstances
amount
to
unfair discrimination against certain employees.3
If
affirmative action
is understood as the expression
of
a fundamental right rather
than
a
limitation
on
it, the burden
of
proof
will
be
relatively
more
favour-
able to beneficiaries
of
affirmative action - a fact
that
could
alter
the
outcome
of
legal proceedings.
This
paper
sets
out
to
give an overview
of
our
developing
labour
jurisprudence
in this area. It is indebted
to
earlier writings
on
the
subject4 and, while
it
cannot
improve
on
many
of
the
conclusions
already reached, will also deal with
some
of
the
more
recent
case
law.
It
will furthermore consider the impact
which
the
Employment
Equity
Act
(EEA)5
may
have
on
existing
case
law,
which
is
based
predominantly
on
a repealed provision6
of
the
Labour
Relations
Act
(LRAV
Finally,
it
will question certain
of
the
opinions expressed
in
previous articles.
DISCRIMINATION
The
starting
point
is the architecture
of
the
affirmative action provi-
sions in
our
labour law.
Section 9( 4)
of
the
Constitution8 prohibits any
person
from
dis-
criminating against another person
on
the grounds
of
race, gender,
sex and fourteen other listed grounds.
In
terms
of
section 9(5) dis-
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