Listado Asignación Docente Curso Académico 2019/2020

Discrimination law is controversial and a difficult legal concept which brings with it a number of challenges.⁶³⁵ These challenges include uncertainty about the definition and meaning of the concept (of discrimination), the scope and meaning of the listed grounds of discrimination; uncertainty about the limits of protection against discrimination (available defences) and, lastly, who bears the onus of proving what in discrimination litigation.⁶³⁶

629 S 15 (1); Dupper & Garbers “Affirmative Action” in Essential Employment Discrimination Law 272.

630 Basson et al Essential labour Law 235.

631 Ss 15(2) and (3).

632 M Tomei Affirmative action for racial equality: features, impact and challenges (2005) 7.

633 7.

634 7.

635 T Khaitan A theory of discrimination law (2015) 1; Garbers & le Roux “Employment Equity into the Future” (2015) ISLSSL Labour Law World Congress 1.

636 Garbers & le Roux “Employment Equity into the Future” (2015) ISLSSL Labour Law World Congress 2, 4.

Below, some of the difficulties in bringing a successful discrimination case to court – in general but also in the context of gender and family responsibility discrimination – will be discussed. The potential of the recent amendments to the EEA to address these difficulties will also be addressed.

3 1 Discrimination as a concept 3 1 1 Direct discrimination

Despite the radical inroads the EEA makes on the freedom of employers to run their business as they see fit, the EEA itself tells us very little about discrimination as a legal phenomenon. As discussed above, although the EEA outlaws discrimination in the workplace, it does not define direct (or indirect) discrimination.⁶³⁷

Although it is not necessary to establish fault in order to prove discrimination, direct discrimination still requires some connection between the prohibited act or omission and the ground of discrimination.⁶³⁸ Even then, difficulties arise and illustrate the restrictions of direct discrimination as a means to combat inequality.⁶³⁹

Firstly, “discrimination” requires a valid comparison (in most cases), the identification of a ground of discrimination and the applicability of that ground to the facts at hand, as well as a causal connection between the ground and the policy or practice in question.⁶⁴⁰ In addition, in a case of discrimination on an unlisted or arbitrary ground, it should be clear that the ground is worthy of recognition in terms of the applicable test.⁶⁴¹ Furthermore, even if discrimination is established, employers are

637 Van Niekerk et al Law@work 1255 and Garbers (2000) SA Merc LJ 143-144.

638 T Khaitan A theory of discrimination law 28, 197.

639 R le Roux & A J Rycroft Reinventing Labour Law: Reflecting on the First 15 Years of the Labour Relations Act and Future Challenges (2012) 250; Garbers “The prohibition of discrimination in employment: Performance and prognosis in a transformative context” Labour Law into the Future: Essays in hounour of D’Arcy du Toit 20.

640 Garbers & le Roux “Employment Equity into the Future” (2015) ISLSSL Labour Law World Congress 24; le Roux & Rycroft Reinventing Labour Law: Reflecting on the First 15 Years of the Labour Relations Act and Future Challenges (2012) 250.

641 Garbers “The prohibition of discrimination in employment: Performance and prognosis in a transformative context” in Labour Law into the Future: Essays in hounour of D’Arcy du Toit 21.

still able to justify it.⁶⁴² In short, an employer may prove that the alleged unfair discrimination did not take place; or is rational and not unfair, or is otherwise justifiable.⁶⁴³

Secondly, common, but difficult, evidentiary issues often arise in employment litigation.⁶⁴⁴ In cases of direct discrimination, the fundamental difficulty has always been that comparator evidence (with other employees), as well as the reasons for the employer’s conduct, remain in the domain of the employer and is not freely available to complainants. ⁶⁴⁵ Complainants therefor often have to rely on circumstantial and weak evidence and with the onus on the employee to prove “discrimination” (prior to the amendments), many direct discrimination claims in the past never progressed beyond a mere allegation of discrimination. ⁶⁴⁶

3 1 2 Indirect discrimination

The prohibition of indirect discrimination – widely accepted today – is aimed at the equal application of apparently neutral policies and practices which have a disproportionate effect on a protected group. In light of the gender bias inherent in caregiving, it has particular potential to alleviate the plight of women as a group.

However, the application of indirect discrimination raises difficult realities and challenges,⁶⁴⁷ of which some will be discussed.

642 See the text to part 2 5 above. R le Roux & A J Rycroft Reinventing Labour Law: Reflecting on the First 15 Years of the Labour Relations Act and Future Challenges (2012) 250; Dupper

& Garbers “Justifying discrimination” in Essential Employment Discrimination Law 96.

643 S11 of the EEA.

644 Dupper & Garbers “The prohibition of unfair discrimination” in Essential Employment Discrimination Law 42; P Eschels & M Gomsak “Defending Employment Cases: Pretrial Litigation Issues and Strategies” (2008) American Bar Association <http://apps.americanbar.o rg/labor/lel-annualcle/08/materials/data/papers/101.pdf> (accessed 26-05-2017)19.

645 Eschels & Gomsak “Defending Employment Cases: Pretrial Litigation Issues and Strategies” (2008) 19; Garbers & le Roux “Employment Equity into the Future” (2015) ISLSSL Labour Law World Congress 24.

646 See, however, the position concerning the onus of proof after the 2014 amendments in the text to part 3 1 4 below. Also see Garbers & le Roux “Employment Equity into the Future”

(2015) ISLSSL Labour Law World Congress 24 and Dupper & Garbers “The prohibition of unfair discrimination” in Essential Employment Discrimination Law 43.

647 Le Roux & Rycroft Reinventing Labour Law: Reflecting on the First 15 Years of the Labour Relations Act and Future Challenges (2012) 246.

Indirect discrimination is a statistical concept in a sense that a “disproportionate effect” usually requires a comparison and computation of compliance rates between different societal groups (where a ground of discrimination distinguishes these groups). ⁶⁴⁸ This leads to questions like how these groups should be identified, how and to what extend they should be compared with each other and what the meaning of “disproportionate” is.⁶⁴⁹ In order to (attempt) to answer these questions and to support a case of indirect discrimination, statistical evidence, which is often difficult to gather (in the context of indirect discrimination), is required. ⁶⁵⁰ The statistical material relied on must also be relevant or significant and it must precisely be determined which figures must be taken into account in order to establish the disproportionate effect.⁶⁵¹ Statistics adds cost and time to any case, and the techniques used by statisticians to test for indirect discrimination are not fool proof and there is a risk of manipulation of data.⁶⁵²

The concept of indirect discrimination is also a difficult, confusing one which requires sometimes creative transformation of apparently neutral policies and practices into disproportionate effects between the different groups.⁶⁵³

Despite these remarks, the absence of a complicated statutory definition of indirect discrimination in South African law was meant to make it easier for applicants – at least before the amendments to the EEA – to prove a prima facie case of indirect

648 Dupper & Garbers “The prohibition of unfair discrimination” in Essential Employment Discrimination Law 46-47; Garbers “The prohibition of discrimination in employment:

Performance and prognosis in a transformative context” in Labour Law into the Future: Essays in hounour of D’Arcy du Toit 24 and le Roux & Rycroft Reinventing Labour Law: Reflecting on the First 15 Years of the Labour Relations Act and Future Challenges (2012) 246.

649 Garbers “The prohibition of discrimination in employment: Performance and prognosis in a transformative context” in Labour Law into the Future: Essays in hounour of D’Arcy du Toit 24.

650 C Tobler Limits and Potential of the Concept of Indirect Discrimination (2008) 6, 41; le Roux

& Rycroft Reinventing Labour Law: Reflecting on the First 15 Years of the Labour Relations Act and Future Challenges (2012) 246.

651 Tobler Limits and Potential of the Concept of Indirect Discrimination (2008) 41.

652 Garbers “The prohibition of discrimination in employment: Performance and prognosis in a transformative context” in Labour Law into the Future: Essays in hounour of D’Arcy du Toit 26.

653 Eschels & Gomsak “Defending Employment Cases: Pretrial Litigation Issues and Strategies” (2008) 10; Garbers “The prohibition of discrimination in employment: Performance and prognosis in a transformative context” in Labour Law into the Future: Essays in hounour of D’Arcy du Toit 25.

discrimination and for the courts to give meaning to it.⁶⁵⁴ Furthermore, as far as proof of indirect discrimination is concerned, it has been argued that South African courts are most probably not going to implement an overtly technical approach to indirect discrimination.⁶⁵⁵ Even so, judged by the very few cases concerning indirect discrimination in our courts and tribunals, the concept has not yet established itself in South African law.⁶⁵⁶ We have a long way to go before we can describe our law on indirect discrimination as "developed”.⁶⁵⁷ In the indirect cases we have seen, the discrimination was “either evident or poorly argued or not pursued by the applicants”.⁶⁵⁸ In addition, it seems like some arbitrators do not grasp the concept of indirect discrimination and consequently do not fully understand its meaning and how it must be proved.⁶⁵⁹

3 1 3 Grounds of discrimination

One aspect of South African workplace discrimination law distinguishing us from other jurisdictions is the number of grounds on which discrimination is prohibited. ⁶⁶⁰ Furthermore, there is the possibility of recognition of unlisted grounds or any other arbitrary ground. Of the grounds listed, only “pregnancy”, “family responsibility” and

“HIV” are defined in section 1 of the EEA. This section also contains a definition of

“people with disabilities” which has been applied in the discrimination context, but

654 Dupper & Garbers “Employment Discrimination: A Commentary” in South African Labour Law II CC40.

655 CC40.

656 Dupper & Garbers “The prohibition of unfair discrimination” in Essential Employment Discrimination Law 49.

657 KM Naidu Discrimination against women in the workplace LLM thesis, University of Natal (1997) 87.

658 Dupper & Garbers “Employment Discrimination: A Commentary” in South African Labour Law, Vol 2 CC42; Dupper & Garbers “The prohibition of unfair discrimination” in Essential Employment Discrimination Law 49.

659 CC42 and Dupper & Garbers “The prohibition of unfair discrimination” in Essential Employment Discrimination Law 49.

660 Garbers “The prohibition of discrimination in employment: Performance and prognosis in a transformative context” in Labour Law into the Future: Essays in hounour of D’Arcy du Toit 27.

arguably should only apply in the context of affirmative action (where this phrase is actually used).⁶⁶¹

Prior to the amendments to the EEA, for reasons including the visibility of certain personal attributes that activate infringements and ignorance of the wide range of other legal grounds for discrimination, discrimination litigation was dominated by race, sex and age.⁶⁶²

Reliance on unlisted grounds tends to be surprisingly common.⁶⁶³ This suggests that discrimination, especially indirect discrimination, is not properly understood. ⁶⁶⁴ Also, with regards to unlisted grounds, the experience shows that the word “arbitrary”, earlier contained in Schedule 7 of the LRA, contributed to a misinterpretation of the concept of discrimination which caused, to a certain extent, a culture of reliance on unlisted grounds.⁶⁶⁵

3 1 4 The onus of proof

One generally accepted response to the difficulties of bringing a successful discrimination claim is to provide for a shifting onus.⁶⁶⁶ The position before the 2014 amendments to the EEA was that the onus to show discrimination, in both the constitutional and employment contexts, rested on the applicant whereafter it shifted to the employer to establish that the discrimination, if on a listed ground, was not

661 Also see Garbers & le Roux “Employment Equity into the Future” (2015) ISLSSL Labour Law World Congress 4 n 15.

662 O Dupper & C Garbers “The prohibition of unfair discrimination and the pursuit of affirmative action in the South African workplace” (2012) Acta Juridica 244 251; le Roux & Rycroft Reinventing Labour Law: Reflecting on the First 15 Years of the Labour Relations Act and Future Challenges (2012) 247, 249.

663 Le Roux & Rycroft Reinventing Labour Law: Reflecting on the First 15 Years of the Labour Relations Act and Future Challenges (2012) 249.

664 249.

665 Garbers “The prohibition of discrimination in employment: Performance and prognosis in a transformative context” in Labour Law into the Future: Essays in hounour of D’Arcy du Toit 33.

It has been submitted that ‘arbitrary ground’ in terms of s 11 of the EEA means the same as the established meaning of ‘unlisted grounds’. See Garbers & le Roux “Employment Equity into the Future” (2015) ISLSSL Labour Law World Congress 20 and the text to part 2 2 above.

666 Garbers “The prohibition of discrimination in employment: Performance and prognosis in a transformative context” in Labour Law into the Future: Essays in hounour of D’Arcy du Toit 40.

unfair.⁶⁶⁷ As stated, many (direct) discrimination claims in the past, where the employee bore the onus to prove “discrimination”, never proceeded beyond a mere allegation of discrimination.⁶⁶⁸

In this regard, the 2014 EEA amendments ostensibly removed one of the most serious barriers to successful discrimination litigation.

Section 11 now states:

“(1) If unfair discrimination is alleged on a ground listed in section 6(1), the employer against whom the allegation is made must prove, on a balance of probabilities, that such discrimination-

(a) did not take place as alleged; or

(b) is rational and not unfair, or is otherwise justifiable.

(2) If unfair discrimination is alleged on an arbitrary ground, the complainant must prove, on a balance of probabilities, that-

(a) the conduct complained of is not rational;

(b) the conduct complained of amounts to discrimination; and (c) the discrimination is unfair.”

The above section, which seems to impose an onus of persuasion on the employer in cases of discrimination on the basis of listed grounds, will hopefully reduce evidentiary challenges in discrimination cases.⁶⁶⁹

667 S 11 of the EEA provided (before the 2014 amendments) that “[w]henever unfair discrimination is alleged in terms of this Act, the employer against whom the allegation is made must establish that it is fair.”

668 Garbers & le Roux “Employment Equity into the Future” (2015) ISLSSL Labour Law World Congress 24.

669 Garbers & le Roux “Employment Equity into the Future” (2015) ISLSSL Labour Law World Congress 25. Also see Bandat v De Kock and Another 2015 36 ILJ 979 (LC) where it was explained that prior to the EEAA, where unfair discrimination was alleged, the duty was firstly on the complainant to establish the existence of discrimination, before the onus could shift to the employer to prove that the discrimination was fair. Following the enactment of the EEAA, all that the employee has to do is to allege that discrimination exists on one of the grounds specified in s6(1) of the EEA, and the onus would squarely be on the employer party to prove that it does not exist.

3 2 Discrimination litigation

3 2 1 General remarks based on the position prior to 2014

Discrimination cases are difficult to win⁶⁷⁰ and individuals are reluctant to engage in discrimination litigation.⁶⁷¹ Several reasons underlie the latter.

Apart from the possibility that uncertainty about the meaning of unfair discrimination, and its constituent elements, hamper litigation,⁶⁷² the high costs of litigation as well as the fact that it is time-consuming also dishearten emlpoyees to take action.⁶⁷³ This was specifically the case in South Africa prior to 2014 when jurisdiction to hear and determine discrimination cases was reserved for the Labour Court.⁶⁷⁴

Employment discrimination litigation is also a system dominated by individual cases where employees are reluctant to engage in the “naming, blaming and claiming”⁶⁷⁵ inherent in litigation and typically leave with a settlement they feel they must accept, even if it is not “just.”⁶⁷⁶ Accordingly, in this system of individualised justice, individuals are left to enforce claims for discrimination alone and for individual compensation and not for systematic change to policies that have a disproportionate effect.⁶⁷⁷

670 Broadly discussed above – see the text to part 3 1 above.

671 Masselot et al Fighting Discrimination on the Grounds of Pregnancy, Maternity and Parenthood - The application of EU and national law in practice in 33 European countries (2012) 30 and M Selmi “Why are Employment Discrimination Cases So Hard to Win?” (2001) La L Rev 555 556.

672 See the text to part 3 1 above.

673 Masselot et al Fighting Discrimination on the Grounds of Pregnancy, Maternity and Parenthood - The application of EU and national law in practice in 33 European countries (2012) 30.

674 Garbers & Rossouw “Women in the Workplace: On ‘unfair discrimination’, ‘affirmative action’, ‘reasonable accommodation’ and ‘special measures’” (2015) ISLSSL Labour Law World Congress 12.

675 Charlesworth “Managing Work and Family in the ‘Shadow’ of Anti-discrimination Law” in Work, Family and the Law 104.

676 L Nielsen, R Nelson & R Lancaster “Individual Justice or Collective Legal Mobilization?

Employment Discrimination Litigation in the Post Civil Rights United States” (2010) J.

Empirical Legal Stud 175 194; Charlesworth “Managing Work and Family in the ‘Shadow’ of Anti-discrimination Law” in Work, Family and the Law 106.

677 Smith (2006) Syd Law Rev 714; L Nielsen, R Nelson & R Lancaster “Individual Justice or Collective Legal Mobilization? Employment Discrimination Litigation in the Post Civil Rights United States” (2010) J Empirical Legal Stud 175; Dupper “The current legislative framework”

in Essential Employment Discrimination Law 16.

Employees also fear being victimized or labelled trouble-makers and, in the light of high unemployment rates, are hesitant to risk existing employment relationships with a request that involve a reorganisation of standardised working arrangements.⁶⁷⁸

It is – and was for employees prior to 2014 – extremely difficult to prove discrimination as a legal concept.⁶⁷⁹ Prior to the 2014 amendments to the EEA it could safely be said it was not easy for women with family responsibilities to prove that the employer did not reasonably accommodate them and that the absence of such accommodation constituted unfair discrimination (whether on the ground of gender or family responsibility).⁶⁸⁰ An employee was required to discharge the burden of proof in respect of the existence of discrimination by causally linking the policy or practice complained of directly or indirectly to the employee’s gender or family responsibilities.⁶⁸¹ In circumstances where decision-making is influenced by apparently reasonable factors based on gender assumptions and stereotyping, the employee faced the difficult task of linking the disparate treatment to a prohibited ground.⁶⁸² Also, specifically in the context of the accommodation of women, specific problems exist with identification of an appropriate comparator (to show differentiation) in the context of a search for, or expectation, of different possible forms of flexible working arrangements.⁶⁸³ Cohen and Dancaster note that there is no general working arrangement that suits all employees aiming to balance work and family responsibilities and specific arrangements have to be adapted to the particular family responsibilities of an employee.⁶⁸⁴ The identification of differential treatment of a group of employees would as a result often not be possible to identify and prove.⁶⁸⁵

678 Masselot et al Fighting Discrimination on the Grounds of Pregnancy, Maternity and Parenthood - The application of EU and national law in practice in 33 European countries (2012) 30 and Cohen & Dancaster (2009) Stell LR 230.

679 Garbers (2000) SA Merc LJ 136.

680 Cohen & Dancaster (2009) Stell LR 230-231.

681 Le Roux & Rycroft Reinventing Labour Law: Reflecting on the First 15 Years of the Labour Relations Act and Future Challenges (2012) 250.

682 Cohen & Dancaster “Flexible Working Arrangements for Employees with Family Responsibilities – The Failings of the Employment Equity Act” in Equality in the Workplace:

Reflections from South Africa and Beyond 209.

683 230.

684 230.

685 230.

Another difficulty is the evidentiary challenges associated with proof of discrimination claims.⁶⁸⁶ In cases of direct discrimination, employers often do not provide reasons for their employment decisions, and even when reasons are given, the particular employee may not have access to the comparative information that would enable him or her to assess the merits of the claim.⁶⁸⁷ In cases of indirect discrimination claims, there are sometimes even more acute evidentiary problems.⁶⁸⁸ The disproportionate impact on a protected group (such as women) may be readily evident and a matter of common sense, but the evidence (or the raw statistics) about the effect of workplace policies or practices will often fall in the domain of the employer, or will only be available through sophisticated statistical impact analysis.⁶⁸⁹

The abovementioned leads to questions about the effectiveness of discrimination litigation. These reservations – also in the context of gender and family-responsibility

The abovementioned leads to questions about the effectiveness of discrimination litigation. These reservations – also in the context of gender and family-responsibility

In document CURSO 2019/2020 MEMORIA DEPARTAMENTO DE LENGUAJES Y CIENCIAS DE LA COMPUTACIÓN (página 33-97)