What on Earth does ‘Justified Discrimination’ entail?

By Jolane van der Walt-Nieuwoudt (LLB) (LLM)

The South African legal system is rooted in the principles of equality, non-discrimination, and the promotion of human rights.

The Constitution of South Africa contains provisions that explicitly prohibit unfair discrimination on various grounds, including, but not limited to, gender, pregnancy, marital status, age, disability, religion, and language. These provisions aim to foster equality and protect individuals from unjust treatment or prejudice. A prohibition against indirect discrimination is contained in the Constitution and is reiterated in the Labour Relations Act, 66 of 1995, and the Employment Equity Act, 55 of 1998.

How can one then proceed to justify discrimination? This is a complex and controversial matter, as discrimination inherently involves treating individuals unfairly or unequally based on certain characteristics.

Justified discrimination involves balancing competing interests and values. There may be situations where discrimination is warranted to achieve a greater good, protect individual rights, or promote social justice.

The Employment Equality Act states that discrimination can be justified if the person who is discriminating against you can show it is a proportionate means of achieving a legitimate aim. If necessary, the courts will decide if discrimination can be justified.

What is a legitimate aim?

The aim must be a genuine or real reason that is not discriminatory; therefore, it must be legitimate. Some examples of legitimate aims include the health and safety of individuals. For example, discrimination based on health and safety considerations can sometimes be argued as justified. Certain jobs or positions may require specific physical or medical requirements to ensure the safety of individuals involved. Discrimination based on these requirements, such as the exclusion of individuals with certain medical conditions from particular roles, could be seen as justifiable.

Another example is age restrictions: In some cases, age restrictions may be considered justifiable, particularly when they aim to protect vulnerable groups or maintain certain standards. For example, minimum age requirements for voting, driving, or consuming alcohol are often based on the idea of ensuring maturity, responsibility, or safety.

In all cases, a legitimate aim must correspond with a real need of the employer. For example, economic efficiency may constitute a real need, but saving money because it is cheaper to discriminate than not to discriminate is not legitimate.

What is meant by proportionate?

This means that the discriminatory impact must be balanced by the importance and benefits of the aim, being appropriate and necessary. There should also be no reasonable, less discriminative alternative.

Onus of Proof?

As a matter of law, the legal burden rests with the employer to show that the unfavorable treatment or any disadvantage caused was objectively justified. Therefore, where the employer has been unable to adduce sufficient evidence and explanation to persuade a tribunal that the “means justified the end,” a finding of unlawful discrimination will be made.

Where a case of unlawful discrimination succeeds, an employment tribunal can order compensation, make a recommendation, and/or make a declaration as to the rights of the parties. An award of compensation will reflect not only any loss of earnings but can also represent what’s known as ‘injury to feelings.’

In the context of discrimination, there is no statutory limit on the amount of compensation that can be awarded. In other words, compensation following a successful claim for unlawful discrimination is unlimited.

While legislation and regulations are in place to protect against forms of discrimination, their enforcement and effectiveness can vary. It is important to note that the South African government, along with various organizations and civil society groups, has been actively working to address workplace discrimination through legislation, policies, and awareness campaigns. However, combating discrimination requires ongoing efforts, including education, advocacy, and promoting a culture of inclusivity and diversity within organizations.