As a general rule, the standards in instances of indirect discrimination in other jurisdictions place a less onerous burden on employers than those applicable in cases of direct discrimination.547 The different standards applicable in direct- and indirect-
540 [1997] 11 BLLR 1438 (LC) 1439; Dupper “Justifying Unfair Discrimination: The Development of a
‘General Fairness Defence’ in South African Labour Law” 2001 Acta Juridica 147 147.
541 Ibid. 542 Ibid.
543 Dupper 2001 Acta Juridica 147. 544 Ibid.
545 Dupper 2001 Acta Juridica 147-148. 546 Ibid.
discrimination cases are normally justified on the basis that employers in cases of direct discrimination expressly exclude all members of a protected class, and should therefore be held to a stricter standard than employers who impose a neutral device in good faith, as would be the case in an indirect discrimination case.548 Employers in
South Africa have two listed statutory defences at their disposal, namely, affirmative action and the inherent requirements of the job, irrespective of the form the discrimination takes. Both are complete defences to unfair discrimination on any of the prohibited grounds.549 The term “unfair discrimination”, however, creates a third
(general) justification ground that employers may turn to should the facts of the case not raise any of the two listed defences, where employers would be able to rebut the
prima facie case of unfair discrimination by proving that their conduct is fair.550 The
inherent requirements of the job defence, when compared to its equivalents in the United States (BFOQ) and the United Kingdom (GOQ), provide a very narrow exception to the anti-discrimination principle.551 Therefore, if the standard for
determining the validity of the two listed defences is a demanding one, then the standard for determining the validity of reasons advanced under the general fairness defence should be similarly exacting.552 The unfairness or not of the discrimination
should not be determined by the form it takes.553
6.2.1 INTERPRETING THE TESTS
In Leonard Dingler Employee Representative Council v Leonard Dingler (Pty) Ltd554
the LC laid down the following partial test to determine unfairness in the non- constitutional context:
“Discrimination is unfair if it is reprehensible in terms of the society’s prevailing norms. Whether or not society will tolerate the discrimination depends on what the object is of the discrimination and the means used to achieve it. The object must be legitimate and the means proportional and rational.”555
548 Ibid.
549 Dupper 2001 Acta Juridica 158. 550 Ibid.
551 Dupper 2001 Acta Juridica 159-160. 552 Ibid.
553 Ibid.
554 [1997] 11 BLLR 1438 (LC). 555 [1997] 11 BLLR 1438 (LC) 1448.
Therefore, if the employer can show that the employment policy or practice has a genuine object, and that the means used to achieve that object, are proportional and rational, then the questioned discrimination will be held not to be unfair.556 It seems,
however, that the partial test to establish fairness as devised by the LC in Dingler is fairly weak when compared to the burden the inherent-requirements defence places on an employer.557 The test for fairness in the non-constitutional context should be a
demanding one for employers, in spite of the articulation of the apparently weak criteria pronounced in Dingler, in that firstly, the weak part of the test558 as articulated by Seady
AJ in Dingler, is only a partial test for unfairness.559 In addition to taking into account
the legitimacy of the object, and proportionality and rationality of the means used by the employer, the court is also bound to consider:
(i) the position of the employees in society;
(ii) the nature of the provision or power and the purpose wanted to be achieved by it; and
(iii) the degree to which the discrimination has had an impact on the rights of the complainants and whether it has led to an impairment of their fundamental dignity.560
These factors pronounced in the second part of the test have been understood by the CC as requiring an investigation into the context of the impact of the differentiation on the complainant.561 In order to establish this context or situation, the Court will have
to look at whether the victim of the discrimination has suffered in the past from patterns of disadvantage, or whether he or she belongs to a group that can be deemed particularly vulnerable.562 Secondly, the only permissible limitations on fundamental
rights under the Constitution are those that are in agreement with an open and democratic society, based on human dignity, equality and freedom.563 Upon further
556 Dupper 2001 Acta Juridica 161. 557 Ibid.
558 Namely the part referring to legitimacy, proportionality and rationality. 559 Dupper 2001 Acta Juridica 161.
560 (CCT9/97) [1997] ZACC 12 [50].
561 (CCT9/97) [1997] ZACC 12 [50]; Dupper 2001 Acta Juridica 162. 562 Ibid.
analysis, the similarity between the fairness enquiry in Dingler and the enquiry under section 36 of the Constitution is striking as both enquiries are based on proportionality, and it would seem that the separate issues of fairness and limitation in the constitutional context have simply merged into a single enquiry in the employment context.564 Finally, the issue of justification under the fairness test normally involves
the weighing up of two conflicting interests, namely the owner’s right to manage his or her business without undue interference, versus the employee’s right to equality, and as with all situations where rights are found to be in conflict with one another, there are no easy answers to resolve this tension.565