This chapter will suggest that the general fairness defence is suitable in cases concerning discrimination in benefits and remuneration, while the inherent requirements of the job defence applies to employment policies and practices relating to performance of the job and participation in employment.609 In cultivating an
approach to these defences it is suggested that respect be shown to the Promotion of Equality and Prevention of Unfair Discrimination Act,610 which is generally consistent
with the CC’s approach to equality and more detailed in its provisions.611 In comparing
Canadian law, it is worth noting that most aspects of the unified approach (the Meiorin test) adopted by the SCC are already covered in the provisions of PEPUDA, and where PEPUDA outline factors to be taken into account when determining fairness, namely,
605 S 39(1) of the Constitution.
606 Dupper et al Essential Employment Discrimination Law 29. 607 Ibid.
608 Ibid.
609 De Villiers “Addressing Systemic Sex Discrimination: Employer Defences to Discrimination in
Canada and South Africa” 2001 Acta Juridica 175 178.
610 Hereafter referred to as “the PEPUDA”. 611 De Villiers 2001 Acta Juridica 178.
“(1) whether the discrimination has a legitimate purpose;
(2) whether and to what extent the discrimination achieves its purpose;
(3) whether there are less restrictive and less disadvantageous means to achieve the purpose;
(4) whether and to what extent the respondent has taken such steps as being reasonable in the circumstances to address the disadvantage which arises from or is related to one or more of the prohibited grounds; or accommodate diversity.”612
The factors outlined above would seem to conform to the factors constituting the SCC’s test for a BFOR, while the exception being that PEPUDA does not include the notion of undue hardship amongst the factors determining fairness.613 The first and second
steps of the Meiorin test enable the court to assess the legitimacy of, respectively, the standard’s general purpose and the employer’s intent in adopting it, ensuring that the standard, whether viewed objectively or subjectively, does not have a discriminatory foundation.614 The third step comprises a test of rationality in determining whether the
standard is necessary in order to accomplish a legitimate purpose; the employer must show that it cannot accommodate the complainant without suffering undue hardship.615
It is common cause that both the EEA and the LRA do not define the concept of an inherent requirement of a job.616 It is therefore suggested that South African courts
adopt the Canadian Meiorin test in an attempt to define the concept more precisely.617
Employers may have to suffer some hardship in making accommodation and hardship may be material.618
Concerning the general fairness defence, it is submitted that the approach to fairness under the EEA and LRA must include the same factors as those under PEPUDA, in addition to those applied under the Meiorin test, as the greater the extent to which these factors are present, the more difficult it should be for an employer to establish that the discrimination is fair.619
612 S 14(3) of PEPUDA.
613 De Villiers 2001 Acta Juridica 179. 614 Ray-Ellis Halsbury’s Laws of Canada 453. 615 Ibid.
616 De Villiers 2001 Acta Juridica 179. 617 Ibid.
618 Ibid. 619 Ibid.
7.1.1 A SUGGESTED APPROACH TO PREGNANCY DISCRIMINATION
It is submitted that a different approach should have been followed in the LAC case of
Woolworths v Whitehead.620 Before addressing this issue, it should be remembered
that the employer argued that the failure to appoint Ms Whitehead was not unfair discrimination, as the reason for her having been made permanent was not because of her pregnancy, but because the person to whom it had been offered was a better candidate as well as that in the situation uninterrupted job continuity was an inherent requirement of the job.621 Zondo J, in the majority, found no causal link between the
applicant’s pregnancy and the decision not to appoint her to the permanent position and therefore, because the claim was dismissed due to causation, the judge gave no consideration to the inherent requirement of the job defence.622 Willis J, was also in
agreement that the matter should be decided without reliance on the inherent requirements of the job defence, as the employer had later conceded that continuity was not an absolute requirement.623 However, continuity was subsequently
considered an acceptable contributing factor, and that commercial justifications were also legitimate concerns to be taken into account. Consequently, this approach allowed Conradie J, in the minority, to focus on what should have been the only pertinent issue, such as in the Canadian tribunal cases, namely whether uninterrupted job continuity was an inherent requirement of the job.624
Under the above approach there would have been a clear onus on the employer to prove that undue hardship would have resulted from implementing steps to accommodate diversity and redress disadvantage caused by pregnancy.625 Therefore,
the unfavourable outcome of this case highlights the importance of ensuring that courts develop an appropriate test for employer defences.626
7.1.2 A SUGGESTED APPROACH TO AGE DISCRIMINATION
620 [2000] 6 BLLR 640 (LAC).
621 Woolworths v Whitehead supra; De Villiers 2001 Acta Juridica 181. 622 Ibid.
623 Ibid.
624 [2000] 6 BLLR 640 (LAC); De Villiers 2001 Acta Juridica 182. 625 Ibid.
Concerning mandatory retirement policies as contained in employer-pension plans and with the view of avoiding possible age-discrimination claims, it is suggested that under the LRA specific exemptions be implemented, following the Canadian approach, namely the bona fide pension plan rule.627 This rule permits employers to engage in
discriminatory treatment of employees based upon their age when those factors form part of the structure of a bona fide pension or retirement plan.628 A bona fide pension
plan is one of whose the retirement terms
(1) were adopted for a purpose rationally connected to the operation and success of the plan,
(2) were adopted in good faith and does not represent a sham to avoid employee rights, and
(3) are reasonably necessary taking into account the operation and sustainability of the plan.629
7.2 A UNITED KINGDOM APPROACH TO EMPLOYER DEFENCES IN SOUTH