JUSTIFICATION FOR SEX DISCRIMINATION IN THE WORKPLACE:
THE CASE OF SOUTH AFRICA
Paper submitted to
the 7th European Congress of the
International Society for Labour Law and Social Security
Stockholm, 4-6 September 2002
by Darcy du Toit, University of the Western Cape,
Cape Town, South Africa
Introduction
The struggle against apartheid in South Africa was seen by the world as a struggle to
replace a legal system based on racial discrimination with one based on equal treatment.
In the process of reconstruction that followed, the country’s new law-makers were
confronted with a legacy of discrimination in all its manifestations. Apartheid had created
a society in which inequality was the norm and every form of discrimination flourished.
Discrimination on the basis of sex and gender,1 compounded by racial differentiation
among women, was second only to race as a breeding ground of political, social and
economic inequality.
Disparities between men and women in the world of work is only one measure of such
inequality, though an important one. A few examples must suffice.2 In the period 19941996 women comprised 45,4% of the economically active population but, of these, only
47,6% belonged to the labour force as compared with 64,3% in the case of men.
Conversely, unemployment ranged from 52,4% among African women (compared with
34,1% among African men) to 5,1% among white women (compared with 4,2% among
white men).
Since the advent of the new constitutional order and the prohibition of race, sex and other
forms of unfair discrimination3 there have been indications that racial and gender
inequalities are abating. But, at the relatively slow pace of transformation that the
economy can sustain, the disparities remain substantial. Valuable information was
provided by the annual report of the Employment Equity Commission for 2001,4 the first
‘Sex”, for purposes of this paper, refers to the biological distinction between female and male. ‘Gender’
refers to a social construct reflecting assumptions about the roles of females and males respectively.
2
The statistics that follow are taken from Finnemore et al: Introduction to Labour Relations in South Africa
7 ed (Butterworths 1999) Ch 3.
3
S 9 of the final Constitution (Act 108 of 1996), s 6 of the EEA and Ch 2 of the Promotion of Equality and
Prohibition of Unfair Discrimination Act 4 of 2000 (PEPUDA) prohibit unfair discrimination, direct as well
as indirect, on grounds of sex, gender and various other listed grounds which are, in the case of the
Constitution and the EEA, not exclusive. Indirect discrimination in the context of this paper refers to
measures which make no explicit reference to sex or gender but, in practice, have a disproportionate impact
on women.
4
See http://www.labour.gov.za/docs/legislation/eea/launch/execsummary.doc.
1
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such report following the implementation of the Employment Equity Act.5 As in other
countries, working women were concentrated mainly in the lower to middle levels of
employment. 40% of all “skilled” jobs were held by women, 21% of senior managerial
positions and 12,5% of top management positions. Superimposed on this unequal
composition was the racial segmentation of the female workforce. For example, only
1,2% of top managerial positions were held by African women who form the
overwhelming majority of women.
During the period under review most new entrants to the workforce continued to be male,
especially at senior levels, though in numbers below their previous levels of
overrepresentation. Thus, 63% of all new recruits were male and 65% of all internal
promotions were of male employees, with 74% of those promoted to top management
positions being white males. On the othe hand, 68% of all terminations of employment,
and 69% at managerial level, were of male employees. In absolute terms the number of
employed men decreased by 45 610 while the number of employed women increased by
17 397, including 2 091 at skilled levels and 1 201 at managerial level.
In this context the topic of the paper can be defined more precisely. Not all inequality can
be ascribed to discrimination. Nine years after the prohibition of unfair discrimination
against women it is arguable that the most visible forms of direct discrimination have to a
large extent – though by no means entirely – been discouraged. Nevertheless the sheer
extent of the disparities between men and women in the workplace suggests continuing
inequality of treatment. Barriers to the employment and/or advancement of women in the
workplace have been found to include inadequate child care facilities, “glass ceilings”,
unequal pay and sexual harassment.6 Sexual harassment has been viewed with particular
concern and has been expressly included in the definition of unfair discrimination. 7 It is
also the subject of a dedicated Code of Good Practice promulgated in terms of the Labour
Relations Act.8 Other barriers, though less visible, may frequently amount to indirect
discrimination typical of that which the legislature has sought to eradicate and which the
courts, armed might with clear statutory powers, might have been expected to address in
a spirit of judicial activism.
The reality has been less clear-cut. The notion of “unfair” discrimination implies that
discrimination may be justified in certain circumstances. The Employment Equity Act
expressly provides that discrimination is not unfair if it is for purposes of affirmative
5
Act 55 of 1998. Chapter 3 of the EEA, promulgated on 1 December 1999, required all employers with
more than 50 employees to implement employment equity plans to achieve “equitable representation” of
black people, women and people with disabilties within the workforce and to report to the Department of
Labour on progress made with the implementation of such plans. As at 31 March 2001, a total of 12 980
employers had submitted reports covering over three million workers. The information below is taken from
the Executive Summary of the Commission’s report for 2001 and, though confined to the companies that
submitted reports, may be seen as representative of broader trends in the economy.
6
Finnemore et al: op. cit.
7
S 6(3), EEA.
8
Code of Good Practice on the Handling of Sexual Harassment Cases: Government Notice 1367 in
Government Gazette 19049 dated 17 July 1998; and see the cases cited in fn 78 below..
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action or is the result of an “inherent requirement of a job”.9 Indirect discrimination,
moreover, may not always be easy to identify or to prove and is also more insidious
because it is frequently associated with deeply-rooted practices and assumptions
permeating the attitudes of many employers. Similar assumptions, it will be seen, may
influence judicial notions as to the permissable limits of differentiation between female
and male employees.
This paper is primarily concerned with the manner in which South African law, in the
context of a society undergoing radical transformation, has upheld women employees’
right to equal treatment and the circumstances under which the courts have found alleged
sex discrimination justifiable. Needless to say, it gives only a brief summary of a
complicated subject. Although it does go into some degree of detail in respect of
contested issues, it does not pretend to speak the last word.
“Discrimination”, unfairness and the onus of proof
The starting point is to clarify the legal meaning of “sex discrimination”. The approach to
the interpretation of unfair discrimination in general laid down by the Constitutional
Court in Harksen v Lane NO10 has established a framework that has generally been
accepted11 by the South African courts:
“The determination whether differentiation amounts to unfair discrimination …
requires a two-stage analysis. Firstly, the question arises whether the
differentiation amounts to ‘discrimination’ and, if it does, whether, secondly, it
amounts to ‘unfair discrimination’. It is well to keep these two stages of the
inquiry separate. That there can be instances of discrimination which do not
amount to unfair discrimination is evident from the fact that even in cases of
discrimination on the grounds specified in s 8(2)12, which by virtue of s 8(4) are
presumed to constitute unfair discrimination, it is possible to rebut the
presumption and establish that the discrimination is not unfair.”13
The first question, therefore, is what is meant by “discrimination”. Differentiation among
employees is not synonymous with discrimination in the legal sense. In Prinsloo v Van
der Linde and another14 the Constitutional Court interpreted “discrimination” as
incorporating a “pejorative meaning relating to the unequal treatment of people based on
attributes or characteristics attaching to them”. A similar approach was followed in
PEPUDA, where “discrimination” is defined as –
“any act or omission, including a policy, law, rule, practice, condition or situation
which directly or indirectly—
(a) imposes burdens, obligations or disadvantage on; or
9
S 6(2), EEA: see below.
1998 1 SA 300 (CC).
11
But not neceesarily applied consistently, as will appear from the cases discussed below.
12
Of the interim Constitution (Act 200 of 1993).
13
At paragraphs 46 ff. See also pp 11 ff below. For further discussion see D du Toit D Woolfrey J Murphy
S Godfrey D Bosch S Christie Labour Relations Law 3 ed (Butterworths 2000) 432-444; Garbers op cit
142-144.
14
1997 (3) SA 1012 (CC) at par 31.
10
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(b) withholds benefits, opportunities or advantages from,
any person on one or more of the prohibited grounds”.15
To qualify as discrimination on one or more of the listed grounds, it is furthermore
necessary to establish a link between the prejudicial treatment complained of and the
alleged reason for such treatment. “[A]pplying a causation test”, it has been argued,
“misconstrues the nature of the constitutional and legislative approach to unfair
discrimination” embodied in PEPUDA and in the approach of the Constitutional Court.16
A causal link, however, is implicit in the words “on one or more of the prohibited
grounds” used in PEPUDA (above) and the similar requirements of the Constitution and
the EEA.17 The underlying difficulty in this context has been one of proof. Most of the
existing case law arose in terms of the prohibition of unfair discrimination previously
contained in the Labour Relations Act18, which required the applicant to prove both the
existence of a discriminatory act and its unfairness. Given the notorious difficulty of
proving facts to which the applicant may have no access, various claims of unfair
discrimination brought in terms of the LRA have failed for lack of evidence.19
The Constitution provided some assistance to applicants by providing that, where
discrimination is shown to have taken place on one of the prohibited grounds, unfairness
will be presumed unless the contrary is proven.20 “Sex”, “pregnancy” and “gender” are
all included among the so-called listed grounds.21 This, however, did not resolve the
15
S 1(1)(viii); and see City Council of Pretoria v Walker 1998 2 SA 363 (CC); 1998(3) BCLR 257 (CC).
Note that PEPUDA does not apply to “any person to whom and to the extent to which the Employment
Equity Act” applies. The EEA applies to “all employees” (with limited exceptions in the military and
security services) and in respect of all “employment policies and practices”, as defined, and will therefore
be the primary point of reference for purposes of this paper.
16
C. de Villiers “Addressing Systemic Sex Discrimination: Employer Defences to Discrimination in
Canada and South Africa”: Paper presented at conference on Equality - Theory And Practice In South
Africa And Elsewhere: University of Cape Town: 18-20 January 2001:
(http://www.uct.ac.za/depts/lrgru/equality.htm) 8.
17
In Woolworths (Pty) Ltd v Whitehead 2000 (3) SA 529 (LAC), in an otherwise controvesial decision (see
Appendix and below), the Labour Appeal Court accepted the principle that there must be a connection
between the alleged ground of discrimination and the prejudice suffered by the applicant (at par 24).
18
Item 2(1)(a), sch 7 to the LRA (Act 66 of 1995).
19
In general, the South African courts have shown what many regard as excessive deference to employers’
operational decisions. In the present context see Swanepoel v Western Region District Council & Another
[1998] 9 BLLR 987 (SE); Walters v Transitional Local Council of Port Elizabeth & another [2001] 1
BLLR 98 (LC) at pars 35-39 as but two instances where the difficulty of proving discrimination on the part
of an employer is demonstrated. However, there have been exceptions. In Leonard Dingler Employee
Representative Council & others v Leonard Dingler (Pty) Ltd & others [1997] 11 BLLR 1438 (LC), it is
submitted, the approach to the question of proof was more consistent with the purpose of the legislation and
the Constitution. See also Ntai & others v South African Breweries Ltd [2001] 2 BLLR 186 (LC); Louw v
Golden Arrow Bus Services (Pty) Ltd [2000] 3 BLLR 311 (LC) at pars 40-58.
20
S 8(4) of the interim Constitution; s 9(5) of the final Constitution.
21
The remaining “listed grounds” are race, marital status, ethnic or social origin, colour, sexual orientation,
age, disability, religion, conscience, belief, culture, language and birth. In the case of an unlisted ground the
onus is on the applicant to establish the unfairness of such ground, which must have “the potential to impair
fundamental human dignity of persons as human beings or to affect them adversely in a comparably serious
manner” as in the case of a listed ground: Harksen v Lane NO 1998 (1) SA 300 (CC); 1997 (11) BCLR
1489 (CC) at par 53.
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difficulty of establishing that the act in question amounted to discrimination rather than
mere differential treatment.
Perhaps the clearest illustration of the problem was provided by the decision of the
Labour Appeal Court in Woolworths (Pty) Ltd v Whitehead22 where the refusal of an
employer to offer more than a temporary position to a well-qualified applicant upon
learning of her pregnancy was upheld on the grounds that the applicant had failed to
prove that the employer’s decision was a result of her pregnancy. Because of the
seriousness with which this judgment has been viewed, a fuller summary of the facts as
well as the reasoning of the court is appended to this paper.23
It was left to the EEA to address the problem by providing that whenever unfair
discrimination on one of the listed grounds is alleged, “the employer against whom the
allegation is made must establish that it is fair.”24 While the wording of the section is less
than clear, the onus placed on the applicant appears to be reduced from having to prove
“discrimination” on a balance of probabilities to establishing a set of facts from which an
inference of discrimination on one or more of the prohibited grounds can be drawn.25
For purposes of this paper, “sex discrimination” may therefore be defined as the
prejudicial, detrimental or unfavourable treatment of female employees by reason of their
sex.
Statutory and non-statutory justifications
The EEA provides that “[i]t is not unfair discrimination to –
(a) take affirmative action measures consistent with the purpose of this Act; or
(b) distinguish, exclude or prefer any person on the basis of an inherent
requirement of a job.”26
Strictly speaking, the sub-section does not create “justifications” for sex or other forms of
prima facie unfair discrimination in that measures falling within its scope are removed
from the ambit of unfair discrimination and thus require no justification. The distinction,
however, is largely academic. In practice the onus would be on the employer to establish
that conduct alleged to be unfair discrimation in fact amounts to an affirmative action
measure or was dictated by an “inherent requirement of a job”. To all intents and
purposes these may be regarded as two statutory grounds for justifying what might
otherwise have been unfair discrimination.
It is not proposed to deal with affirmative action in the present context, partly because it
does not present itself as a defence to a claim of sex discrimination against female
22
2000 (3) SA 529 (LAC).
See pp 19-23 below.
24
S 11.
25
Cf C Garbers ‘Proof and Evidence of Employment Discrimination under the Employment Equity Act 55
of 1998’ (2000) 12 SA Mercantile Law Journal 136. Similarly, PEPUDA requires the applicant to make out
a prima facie case of discrimination in order to reverse the burden of proof (s 13).
26
S (6)(2).
23
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employees but also, more fundamentally, because it is essentially a means of redressing
the effects of past discrimination rather than a justification of existing discrimination..27
For reasons that will appear more fully below, it will be argued that the “inherent
requirements of a job” should be regarded as the only legal justification for sex
discrimination.
It has, however, been argued that, in addition to the statutory grounds, a so-called
“general fairness” defence should be recognised whereby discrimination that would
otherwise have been unfair may be justified if in terms of its objectives, nature and
context it meets certain strict requirements of proportionality and/or fairness.28 Viewed in
a broader constitutional and international context, various points of support for such an
approach can be found. In the context of South African labour law, the principal basis for
the argument is to be found in Leonard Dingler Employee Representative Council &
others v Leonard Dingler (Pty) Ltd & others29 where it was noted that, despite the
prohibition of unfair discrimination,
“[w]hat is less clear is where to draw the line between permissible and
impermissible discrimination. The notion of permissible discrimination is in
keeping with a substantive, rather than formal, approach to equality that
permeates the Constitution and from which item 2(1)(a) draws its inspiration.”
Then, having noted that the employer relied on neither of the two statutory defences,
Acting Justice Seady went on to hold as follows:
“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.”30
Also in a number of later decisions the courts have pronounced on the fairness or
otherwise of discrimination with little reference to the statutory defences. In Woolworths
(Pty) Ltd v Whitehead,31 for example, Justice of Appeal Willis in a minority judgment
described “fairness” as “an elastic and organic concept” which must “take account of the
The South African labour courts, following The Public Servants’ Association of South Africa and others
v The Minister of Justice and others 1997 (3) SA 925 (T), have tended to take a formal view of the right to
equality and to construe affirmative action as a limited exception to this right. It is submitted that this
approach is in conflict with the substantive approach to equality embodied in the Constitution as well as the
approach of the Constitutional Court in cases such as President of the Republic of South Africa and another
v Hugo [1997] 6 BCLR 708 (CC). S 9(2) of the Constitution provides that “[t]o promote the achievement of
equality, legislative and other measures designed to protect or advance persons, or categories of persons,
disadvantaged by unfair discrimination may be taken” From this standpoint, it is submitted, affirmative
action should be regarded as “a fair means to achieve the end of substantive equality”: A. van Niekerk
“Affirmative action – three cases, two views” Contemporary Labour Law Vol 7 no 1 (August 1997) 9. See
D. du Toit “When does affirmative action in favour of certain employees become unfair discrimination
against others?” (2001) 5 International Journal of Discrimination and the Law 147-166.
28
See O. Dupper “Justifying Unfair Discrimination: The Development of a General Fairness Defence in
South African (Labour) Law”: Paper presented as work in progress at conference on Equality - Theory And
Practice In South Africa And Elsewhere: University of Cape Town: 18-20 January 2001:
(http://www.uct.ac.za/depts/lrgru/equality.htm). See also De Villiers op. cit. esp at 5-6, 12.
29
[1997] 11 BLLR 1438 (LC).
30
At 1448.
31
[2000] 6 BLLR 640 (LAC); see Appendix.
27
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norms and values of our society as well as its realities”.32 Accepting that the employer’s
refusal to appoint a pregnant woman could not be justified by the inherent requirements
of the job in question, the learned judge of appeal proceeded in an obiter dictum to
consider a broad variety of factors by which, in his opinion, discrimination on the
grounds of pregnancy may have been justified. Similarly, in University of Cape Town v
Auf der Heyde33 the Labour Appeal Court, again obiter, appeared willing to consider the
justifiability of the employer’s action in the light of factors unrelated to the statutory
defences.
It is submitted that this is scarcely an inadequate basis from which to infer the existence
of a “general fairness” defence in the present context. Despite parallels between the
notion of “general fairness” and the justification of indirect discrimination in certain other
jurisdictions, and notwithstanding the “general fairness” test contained in section 36 of
the Constitution,34 any additional justification of unfair discrimination in South African
workplaces needs to be tested in relation to the problems being addressed in those
workplaces as well as the overall framework of South African labour law, the existing
rights and duties of the parties and the remedies available to them. The case law referred
to above does not do this. The flexibility and, at times, vagueness shown in relation to the
statutory defences, it is submitted, reflects inconsistency rather than any coherent
development of legal principle.
Even in the Leonard Leonard Dingler case (above) it is noticeable that the question of a
“general fairness” test was not squarely addressed. The first of the two passages cited
above may be read as a rationale of the fact that there are circumstances in which
discrimination may be justified. Both the LRA and EEA, it may be argued, gave effect to
this consideration by defining those circumstances. There is no indication that the
legislature intended prima facie unfair discrimination to be justifiable on grounds other
than those which it chose to include in the statutes. Thus, in both statutes as well as in the
Constitution the list of prohibited grounds of discrimination is preceded by the word
“including”, making it clear that discrimination on grounds other the listed grounds may
also be unfair. The same flexibility is not introduced in defining the grounds of
justification, thus suggesting that the purpose was to limit the grounds to those explicitly
mentioned. This impression is reinforced by the fact that, when enacting the EEA some
three years after the LRA, parliament did not use the opportunity of introducing a more
32
At par 127.
[2001] 12 BLLR 1316 (LAC). For a critical discussion, see D. du Toit “New Light on Old Questions?
University of Cape Town v Auf der Heyde (LAC)” (2002) 23 Industrial Law Journal(SA) 658-669.
34
S 36(1) of the Constitution reads: “The rights in the Bill of Rights may be limited only in terms of law of
general application to the extent that the limitation is reasonable and justifiable in an open and democratic
society based on human dignity, equality and freedom, taking into account all relevant factors, including (a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose and less restrictive means to achieve the purpose.”
It will be noted that the test is applicable to “laws of general application” rather than to the conduct of
individual employers.
33
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flexible definition of fairness but adopted a formulation practically identical to that in the
LRA.
If this is so, the finding by Seady AJ in the second of the passages cited above could not
have the effect of undoing what the legislature has done. In the context of the judgment,
however, it is not clear that this was the intention. In the matter before the court it had
been argued that, if there had been discrimination on the part of the employer, then it was
not unfair.35 The court rejected this argument and added that, even if it had been argued
that the measures in question had been collectively agreed, this would not have changed
the position. Rather than developing a more flexible approach to judging the fairness of
indirect racial discrimination, in other words, the court was concerned with asserting the
limits within which differential treatment is allowed. The quoted passage may be read as
making clear beyond doubt that the policy of the employer met neither the requirements
of the statutory defences nor those of fairness in general on which the statutory defences
are based.
De Villiers goes on to suggest that a “general fairness” test36 may be appropriate in
dealing with cases of discrimination in benefits and pay. “On the one hand,” it is argued,
“it would seem that the inherent requirement of the job defence would not be applicable
because discrimination in benefits and pay do not fall within the plain meaning of the
inherent requirement of the job defence and on the other hand a general fairness defence
would be sufficiently flexible to assist in resolving such claims.”37
It is submitted that this does not follow. The Leonard Dingler case (above), which
concerned a dispute of this nature,38 illustrates the difficulty of imagining circumstances
in which racial discrimination in the provision of benefits or pay could be justified on any
grounds at all. Much the same, it would seem, could be said of sex discrimination. The
exceptional example used by De Villiers is that of pregnant women whose absence from
work may place costs on employers and could therefore require a “careful balancing of
the rights of the employee and employer concerns” in the context of a “general fairness”
inquiry.39 There are, however, at least two alternative ways in which the question could
be approached.40
35
At 1449.
Interpreted in accordance with the criteria of “fairness” contained in s 14(3) of PEPUDA.
37
At 12.
38
The dispute arose from the employer’s policy of maintaining separate benefit funds for, in effect, black
and white employees.
39
Ibid.
40
Another solution would be for the legislature to settle the issue. The following recommendation in
respect of UK anti-discrimination legislation may be noted: “Adverse treatment of a woman for a reason
related to pregnancy or childbirth should be a substantive wrong, without any requirement for comparison
with the treatment of another person” (see B. Hepple QC, M. Coussey & T. Choudhury Equality: A New
Framework: Report of the Independent Review of the Enforcement of UK Anti-Discrimination Legislation
The University of Cambridge Centre for Public Law and Judge Institute of Management Studies [Hart
Publishing, 2000] 28). If pregnancy is indeed the primary instance where the statutory grounds for
justifiable discrimination are considered inadequate, a similar provision containing the desired balance of
competing rights could be the most effective way of regulating it. PEPUDA, which yields to the EEA in
36
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The first is to rely on the criterion of the “inherent requirements of a job”. A “job” has a
broader context than its physical performance. Its “inherent requirements”, it is
submitted, constrain and make demands on the employer as well as on the employee who
performs it . It may include attributes such as its continuity as well as the number of
persons required to perform it, the cost of employing them and the employer’s ability to
pay that cost. In Woolworths (Pty) Ltd v Whitehead,41 for instance, the employer argued
that the employee’s presence in the workplace was essential and that refusal to employ a
pregnant woman was therefore justified by the inherent requirements of the job. The
argument was rejected on the facts, thus demonstrating that all relevant aspects of the job
should be considered and provided for in the order that is made. If the nature of a job is
such that there is no need to replace the employee during her absence, no discriminatory
measures can be justified.42 If replacement is necessary, the cost of doing so would be
one of the requirements of the job from the employer’s point of view. If the cost of doing
so is more than the employer can afford, this would form one of the circumstances that
the court would have to take into account in assessing the extent of the employer’s duties
towards the employee.43 It may, for example, justify placing part of the cost on the absent
employee in the form of measures that would otherwise have amounted to indirect sex
discrimination.44
A second alternative approach would be to ask whether measures of the kind discussed
above should be categorised as discrimination in the first place. Not every form of
differentiation, direct or indirect, amounts to discrimination. The prejudicial or
disadvantageous content of discriminatory conduct must be within the employer’s ability
to avoid or to remedy before the latter will have a case to answer. It may be argued that
objectively unavoidable measures that, in themselves, impact disproportionately on
female employees should not be regarded as discriminatory and that the question of
justification should therefore not arise.
The concept of “reasonable accommodation” assists in clarifying both the above
approaches. The term is defined as “any modification or adjustment to a job or to the
working environment that will enable a person from a designated group to have access to
or participate or advance in employment”45 and it is implicit that such measures should
not impose “undue hardship” on the employer.46 A similar test could be used in clarifying
respect of employees and in the context of employment policies and practices (see fn 13 above), went no
further than restating the prohibition of unfair discrimination on the grounds of pregnancy (s 6).
41
[2000] 6 BLLR 640 (LAC); see Appendix.
42
See also Collins v Volkskas Bank (Westonaria Branch), a division of Absa Bank Ltd [1994] 12 BLLR 73
(IC), discussed at p. 12 below.
43
In terms of the test suggested by De Villies: see p. 15 below.
44
Cf Collins v Volkskas Bank (fn 42 above and p. 12 below).
45
S 1, EEA.
46
The term derives from the Canadian Employment Equity Act (1995), which stipulates that employment
equity does not require “measures that cause undue hardship for an employer”. See ‘Key elements of the
new Employment Equity Act and Regulations’ par 3 at http://info.load-otea.hrdcdrhc.gc.ca/~weeweb/keyele.htm; M. O’Sullivan ‘Submission on the Employment Equity Bill to the
Portfolio Committee on Labour’ o.b.o. Women and Human Rights Project, Community Law Centre, UWC:
1998-07-20 at http://www.irnet.co.za/empeqty/index.htm 6; De Villiers op cit 1-4.
JUSTIFICATIONS FOR SEX DISCRIMINATION IN THE WORKPLACE
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the meaning of “inherent requirements of a job” as well as the concept of
“discrimination”. Measures that cannot be avoided without causing undue hardship to the
employer, from this standpoint, will not amount to “discrimination” or, if deemed to be
discriminatory, may be regarded as arising from by the “inherent requirements” of the job
in question.
The distinction between a defence based on “general fairness” and the alternative
approaches suggested above may seem to be largely semantic. It is, indeed, arguable that
in theory all three approaches should lead to similar results. In practice, however, there is
reason to fear that a “general fairness” test, despite the rigorous criteria suggested by
Dupper and De Villiers, may have the effect of broadening the scope for discrimination.
South African case law reflects considerable inconsistency in the application of the
existing, relatively specific rules laid down by the LRA and the EEA. The notion of a
“general fairness” test, it was suggested above, may itself be seen, at least in part, as a
reflection of such inconsistency. There is no firm basis for believing that this relatively
subtle and open-ended test would fare better, and some danger that it might ultimately
serve as little more than a catch-all device for justifying measures that have failed every
other test.
“Inherent requirements of a job”47
In general the courts have interpreted this defence strictly and, in most cases where it was
raised, the employer’s conduct failed to pass the test.
In one of the earliest cases where sex discrimination was at issue, Association of
Professional Teachers & another v Minister of Education & others,48 the Industrial
Court49 held that “a differentiation based on the inherent requirements of a particular job
should only be allowed in very limited circumstances and should not be allowed in
circumstances where the decision to differentiate is based on a subconscious (or worse, a
conscious) perception that one sex is superior to the other” nor where it is based on “a
stereotyped notion about women”. A regulation denying married female teachers the
same right to housing benefits as male or unmarried female teachers was found to be
clearly unjustifiable on this or any other ground.
Discrimination on at least three prohibited grounds was not only claimed but freely
admitted in Swart v Mr Video (Pty) Ltd.50 In this matter the applicant had responded to an
advertisement for a position as assistant in a video outlet which stipulated an age limit of
25 years and, being 28 years old, was rejected. The employer’s defence was that the
stipulated age limit was in effect an inherent requirement of the job in that the other
The parallels between this defence and equivalent defences in other jurisdictions, such as “genuine
occupational qualification” in UK law and “bona fide occupational requirements” in Canadian law, may be
noted but will not be explored within the confines of this paper. For discussion see Dupper (fn 27 above) 815.
48
[1995] 9 BLLR 29 (IC) at 60.
49
Established in 1979 in terms of the Industrial Conciliation Act 28 of 1956; predecessor of the Labour
Court.
50
[1997] 2 BLLR 249 (CCMA).
47
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employees were young, compatibility among employees was important and an older
person might be reluctant to accept instructions from a younger person. The arbitrator
rejected this defence on the grounds that compatibility is not determined by age alone and
that, as the applicant was apparently not averse to taking instructions from a younger
person, there was no reason for not employing her.
Not content with the above assertion, the employer went on to claim the fact that Ms
Swart was married and had children as an additional reason for not employing her. Not
surprisingly, the arbitrator found that this constituted unfair discrimination on the basis of
marital status and family responsibility.
In most other reported cases, however, sex discrimination has taken less blatant forms
and the “inherent requirements” defence required more careful consideration. Alleged
discrimination against pregnant employees for business-related reasons has been a
particular source of contention.
In Collins v Volkskas Bank (Westonaria Branch), a division of Absa Bank Ltd 51 the
employer had refused the employee’s application for maternity leave in terms of a
collective agreement stipulating that such leave would not be granted within two years of
a previous period of maternity leave. The employer did not expressly rely on the inherent
requirements of the applicant’s job, which did not yet exist as a statutory defence, but the
court nevertheless considered whether its decision could be justified on this basis.
Commercial rationale, it was found, justified a policy that placed some limitation on the
amount of maternity leave granted to employees. Dealing with the manner in which the
policy had been applied, however, the court ruled as follows:
“Business necessity … is the touchstone as to what constitutes acceptable
discrimination in international codes and practice: Put in another way, I would
submit that the question whether the dismissal of a female employee in a
particular case arising within the meaning of section 8(2)52 revolves around
considerations of business necessity or the operational requirements of the
business. If her dismissal is justified by her employer’s operational requirements,
in the sense that he cannot do without her during the period of her maternity
leave, then although her dismissal would be discriminatory, at least indirectly, it
would not amount to unfair discrimination within the meaning of section 8.”
On the facts, it was found that the branch where the applicant was employed could well
have done without her services for three months and was, indeed, overstaffed. The
defence of the “inherent requirements” of the job could therefore not be sustained as a
justification for the applicant’s effective dismissal.
The facts in Whitehead v Woolworths (Pty) Ltd53 have already been noted.54 In this matter
the Labour Court found that “an inherent requirement of the particular job” implies that
51
[1994] 12 BLLR 73 (IC). Although the interim Constitution was not yet in force when the dispute arose,
the case was decided with reference to the interim Constitution and international law.
52
Of the interim Constitution.
53
[1999] 8 BLLR 862 (LC).
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the job must have “some indispensable attribute” which is “so inherent that if not met an
applicant would simply not qualify for the post.”55 Uninterrupted job continuity, it was
held, cannot be an inherent job requirement because it can never be guaranteed. On
appeal the Labour Appeal Court arrived at a similar finding. Zondo AJP found that the
employee’s absence on maternity leave “would cause the appellant no more than some
inconvenience and some amount of disruption”.56 Conradie JA similarly found that the
tasks to be performed by Whitehead, “important as they no doubt were, cannot in my
view be said to have vitally depended upon the respondent’s presence at the workplace
during the months of June to August 1998.”57 Willis JA, while finding that an employer
is entitled to take an applicant’s pregnancy into account as one of the relevant factors in
deciding whether to employ her, accepted that in this case her uninterrupted presence was
not an inherent requitement of the job in question.58
A third case involving a pregnant employee was Mashava v Cuzen & Woods Attorneys59
in which a candidate attorney, who discovered that she was pregnant a month after
commencing employment, delayed informing her employer of the fact until her condition
had become noticeable. After responding sympathetically, the employer subsequently
dismissed her on the grounds that she had lied to other employees by concealing her
pregnancy. The case was decided in the applicant’s favour on the basis that there is no
duty on an employee to disclose the fact of her pregnancy60 and failure to do so could not
be regarded as “deceit” in the context of the relationship of trust between employer and
employee.
Although the employer in this case did not rely on the “inherent requirements” defence
and denied that the applicant’s pregnancy was the reason for her dismissal, the court
found that she was dismissed for a “reason relating to her pregnancy” in that the reason
for her silence was fear of the consequences of disclosing her pregnancy. It is noteworthy
that the definition of “pregnancy” in the context of unfair dismissal is “the employee’s
pregnancy, intended pregnancy, or any reason related to her pregnancy” 61 whereas in the
context of unfair discrimination short of dismissal it is defined as including “intended
pregnancy, termination of pregnancy and any medical circumstances related to
pregnancy” (emphasis added).62 It is an open question whether, had the discrimination
against Ms Mashava consisted of an act short of dismissal, the court in the above
circumstances would have been prepared to read fear of disclosing the fact of pregnancy
into the definition of “pregnancy”.
54
Above; and see Appendix.
At pars 34-35.
56
Woolworths (Pty) Ltd v Whitehead 2000] 6 BLLR 640 (LAC) at par 26.
57
At par 43.
58
I.e., that discrimination on the grounds of pregnancy was justified by an inherent requirement of the job.
See par 122.
59
[2000] 6 BLLR 691 (LC).
60
Except for purposes of maternity leave in terms of the Basic Conditions of Employment Act.
61
S 187(1)(e), LRA, in terms of which the case was decided.
62
S 1, EEA. The definition in PEPUDA similarly refers to “any condition related to pregnancy, intended
pregnancy, potential pregnancy or termination of pregnancy”: s 1(1)(xix).
55
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One of the few cases where the “inherent requirements” defence received positive
consideration, if only indirectly, was Lagadien v University of Cape Town.63 In this
matter the applicant had applied for a position as coordinator of the university’s
Disability Unit, a position she had filled for a time in an acting capacity. The
advertisement stated that ability to work with the academic sector was an essential
requirement and a tertiary qualification would be advantageous. The applicant was
rejected on the grounds that a better-qualified candidate had been appointed and her lack
of a tertiary qualification was singled out as a reason for her failure to be appointed. The
issue which the court was ultimately called on the decide was whether the applicant had
suffered unfair discrimination on the unlisted ground of lack of an academic
qualification. In this regard the court made the following finding:
“It was in this specific sector [of ‘work with the academic sector’], the respondent
contends, involving the indispensable requirement of experience of the work
described in an academic environment, that the applicant, notwithstanding her
undoubted strengths and attributes at other levels, fell short and was determined to
be not appointable…
“That requirement, bolstered as would unarguably be the case by a level of
tertiary education, was not an unfair one and constituted justifiable discrimination
within the ambit of section 6(2)(b)64 of the Employment Equity Act 55 of 1998
(Schedule 2 of which repealed the residual unfair labour practice provisions of the
Labour Relations Act 66 of 1995 upon which the applicant, in her pleadings,
relies).”65
Given the finding that the applicant had been defeated on merit, however, it follows that
“discrimination” was not established and that there was in fact no case for the respondent
to answer.66 The above pronouncement may therefore be seen as obiter but provides
further evidence of the approach that the courts may be expected to follow.
Clarifying the scope of the defence
It is apparent from the cases referred to above that a thorough and systematic judicial
interpretation of the meaning and scope of “the inherent requirements of a job” is still
being awaited. The following indications emerge from the reported judgments:
 It is analagous to “business necessity” and/or must be dictated by operational
requirements (Collins v Volkskas);
 It must be so essential that, without it, an employee would be unable to do the job
(Whitehead v Woolworths);
63
[2001] 1 BLLR 76 (LC).
Providing that it is not unfair discrimination to exclude a person on the basis of the inherent requirements
of a job.
65
At pars 18-19. It appears that the dispute rose prior to the promulgation of the EEA and therefore fell to
be decided in terms of the equivalent provisions of the LRA that were applicable at the time.
66
If the dispute had indeed arisen prior to the promulgation of the EEA, the finding of the court that the
applicant’s “allegation” of unfair discrimination presented the employer with a case to answer would be
incorrect. The onus would have been on the applicant to prove both the fact of discrimination and its
unfairness. In the case of an unlisted ground, however, this would most probably involve the same set of
facts.
64
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

Non-compliance with such requirement must result in more than mere inconvenience
or limited disruption to the employer (Woolworths v Whitehead);
There should be clear evidence of its existence. In the case of a job being advertised,
for instance, the inherent requirements should appear from the advertisement
(Lagadien v University of Cape Town).
Conversely, it appears that the following circumstances will not, in themselves, be
regarded as constituting or creating “inherent requirements of a job”:
 Commercial rationale (Whitehead v Woolworths; Woolworths v Whitehead; Hoffman
v South African Airways67);
 Indefinite availability unless there are special circumstances making this essential
(Woolworths v Whitehead);
 Market advantage determined by (perceived) public prejudice (Hoffman v South
African Airways);
 Differential pay demands or expectations of different groups of employees (Ntai &
others v South African Breweries Ltd68);
 A collective agreement or negotiated outcome providing for sex or other forms of
discrimination (Collins v Volkskas Bank; George v Western Cape Education
Department and another;69 Leonard Dingler Employee Representative Council &
others v Leonard Dingler (Pty) Ltd & others;70 Larbi-Odam v MEC for Education
(North-West Province)71); and
 Performance of a duty which the employee is legally not liable to perform (Mashava
v Cuzen & Woods).
De Villiers72 suggests that the following criteria, listed in PEPUDA73 as criteria for
determining fairness in general, should be used in determining whether a prima facie
discriminatory act by an employer can be justified with reference to the inherent
requirements of a job:
“(e) whether the discrimination has a legitimate purpose;
“(f)
whether and to what extent the discrimination achieves its purpose;
“(g) whether there are less restrictive and less disadvantageous means to
achieve the purpose;
“(h) whether and to what extent the respondent has taken such steps as being
reasonable in the circumstances to—
(i)
address the disadvantage which arises from or is related to one or
more of the prohibited grounds; or
(ii)
accommodate diversity”.
67
68
69
[2000] 12 BLLR 1365 (CC) at par 34.
[2001] 2 BLLR 186 (LC).
70
[1996] 2 BLLR 166 (IC)
[1997] 11 BLLR 1438 (LC) at 1449.
71
1998 (1) SA 745 (CC).
72
Ibid. 5-6.
73
S 14(3)(e)-(h).
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The author goes on to suggest that the criterion of “undue hardship”74 should be used in
testing whether an employer’s action meets the above requirements. Only if it would
place undue hardship on an employer to avoid the discriminatory impact of the job
requirements in question, it is argued, should the defence be available since, in the
absence of such a criterion, the courts may apply the lesser test of “reasonableness,”75
thus broadening the scope of the defence.
There are some grounds for this concern, as reflected in the dicta of Willis JA in
Woolworths v Whitehead (above), though in most cases decided with reference to this
defence a more rigorous approach was followed.
The position in the United Kingdom may also be noted. An independent review of the
enforcement of anti-discrimination legislation76 suggests that the lists of “genuine
occupational qualifications” contained in the Sex Discrimination Act of 1975 and Race
Relations Act of 1976 are outdated and recommends that they be replaced by “a general
defence that the essential functions of the job [require] it to be done by a person of a
particular ethnic or national origin, religious or other belief, sex, or age.” 77 The defence,
it is added, should be amplified by examples in a code of practice.
This approach has much to commend it. It would, first and foremost, concentrate the
minds of all parties on the issue that should be central: whether or not there is anything in
the nature of the job itself that makes sex or race discrimination unavoidable. However, it
is limited to the question of appointments and does not address the phenomenon of
discrimination against black or female employees in the context of employment policies
and practices. In this broader field the approach suggested by De Villiers (above)
provides an appropriate way forward.
To this it may be added that the “inherent requirements of a job” should be considered
from the standpoint of the employer as well as the employee. Just as certain ineluctable
demands are placed on the person performing the job, so there are there are certain
objective conditions attaching to the creation of a job from the employer’s point of view.
If these conditions can no longer be satisfied it may justify the abolition of the job and the
dismissal of the incumbent for operational reasons. While a job is being performed, it
follows, an employer should be justified in giving effect to requirements for its continued
existence in accordance with the criteria suggested above.
Conclusion
Viewed against the huge disparities sketched at the beginning of this paper, it is clear that
the impact of anti-discrimination law and the role of the courts in giving effect to it have
been limited and uneven. This is not to underestimate the gains that have been made in
Derived from the “bona fide occupational requirements” defence in Canadian law: discussed ibid. 1-4.
I.e., that the court should refrain from interfering with an employer’s decision if it is one that an
employer could reasonably have arrived at, even if the court does not agree with it.
76
Fn 36 above.
77
Recommendation 10; ibid. 37.
74
75
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some areas.78 These gains, however, are dwarfed by the remaining inequalities. A point
has not yet been reached where sex discrimination disputes, or discrimination disputes in
general, are being pursued in numbers comparable to the flood of dismissal disputes
which has, arguably, had a significant impact on employment policies and practices in
this field.79 Inadequate child care facilities, “glass ceilings” and unequal pay were noted
above as some of the principal barriers being experienced by women employees. Given
the sophisticated definition of indirect discrimination it is likely that employment
practices in these areas may in many cases be open to debate. Yet few challenges have
been mounted.
This fact alone makes it clear that the problem is not primarily a legal one. Ultimately,
the key to resolving disparities in the workplace may have more to do with the
distribution of resources and the implemenation of socio-economic rights – for example,
access to education – than with jurisprudence.80 That does not, however, diminish the
responsibility of lawyers and the courts to ensure that the cases which do come before
them are decided in accordance with the purpose of the law and set a positive precedent
for the future. They approach this task, moreover, armed with some formidable weapons
– most notably, a Bill of Rights containing a guarantee of human dignity, equality and
socio-economic transformation that must inform all laws and judicial decisions. Against
this background it is all the more important to take stock of the manner in which the
courts have gone about their task in the area under discussion.
The greatest single difficulty faced by complainants, undoubtedly, has lain not in the
courts’ interpretation of the “inherent requirements of a job” as a justification for alleged
discrimination but, rather, in satisfying the court that the act complained of amounted to
“discrimination” – in other words, that it was occasioned by the sex of the complainant
rather than by some other, legitimate reason. Most clearly, in the case of the nonappointment of female job applicants, the courts have been persuaded relatively easily
that the successful candidate was appointed on merit and, that being so, there was no
discrimination to be justified.
It may be argued that the effect of section 11 of the EEA, which sets out to reduce the
burden of proof on the applicant,81 has not yet been felt. On the face of it, however, the
relief provided by section 11 might not have made much difference in many of the
reported cases where the courts conflated the inquiry into the discriminatory nature of the
act in question with the inquiry into its fairness. Reversing the burden of proof may
preclude the court from granting absolution from the instance in cases where the
78
For example, sexual harassment: see Van Leeuwen v Nettex (Pty) Ltd [1994] 11 BLLR 108 (IC);
Hapgood v Spanjaard [1996] 2 BLLR 187 (IC); Pretorius v Britz [1997] 5 BLLR 649 (CCMA); Reddy v
University of Natal [1998] 1 BLLR 29 (LAC).
79
Of the 103 096 matters referred to referred to the Commission for Conciliation, Mediation and
Arbitration (CCMA) during 2000/2001, 74% concerned dismissal disputes. The CCMA, established in
terms of the LRA, is the primary forum for the resolution of labour disputes, including those over which
the Labour Court has jurisdiction. An increasingly important part, however, is being played by “bargaining
councils” which provide disputes-resolution services equivalent to those of the CCMA in certain industries.
80
Cf De Villiers op cit 11-12.
81
See p. 6 above.
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applicant is unable to prove specifically that the prejudice she has suffered amounts to
“discrimination”.82 It will, however, ultimately continue to depend on the closeness with
which the courts are prepared to scrutinise employers’ arguments as to the reasons for
their decisions.
The complexity of the problem is due at least partly to the fact that few operational or
staffing decisions can be ascribed to a single reason and, in most cases, a multiplicity of
factors may play a greater or lesser role. The courts have thus far tended to be satisfied
with considering whether the alleged discrimination was the main or dominant reason for
the employer’s action and, if it was not, to see that as the end of the matter. A different
view, however, was taken by Landman J in Louw v Golden Arrow Bus Services (Pty)
Ltd,83 where the following approach was adopted in the light of European law:
“[T]here will be unfair discrimination to the extent that the discrimination in the
case under investigation is caused or contaminated by it. This exercise is unlikely
to be easy. It is akin to an attempt to unscramble an omelette. But, I believe, it is
the only way to give effect to the injunction not to discriminate on the
impermissible grounds leaving permissible discrimination intact.”84
Any remedy, it was added, should be proportionate to the extent of the discrimination.
It is submitted that this approach is sound. To the extent that an “all-or-nothing” rule may
have deterred the courts from making findings of discrimination where the merits were
less than clear-cut, a proportional approach may lead to more sensitive decisions.
Against this background it may be argued even more strongly that the “inherent
requirements of a job”85 provides sufficient scope for justifying all forms of sex (and
other) discrimination in the workplace that can be considered justifiable from the
standpoint of social policy and the constitutional guarantee of human dignity and equal
treatment. Sex discrimination, and discrimination in general, may be necessitated by the
requirements of a job, understood in the broad sense outlined above. If it is not, there is
no clear basis on which it can be considered justifiable. Excessive rigidity by the courts
or excessive zeal in striking down employers’ decisions has not been noted in this field.
There is no obvious case for expanding the scope of justifiability by adding a sphere of
“general fairness” to be defined by the courts. Legislative amendments, it is submitted,
should be aimed at bringing about greater precision rather than creating yet greater
flexibility.
82
For an indication of the practical implications, cf Schmahmann v Concept Communications Natal (Pty)
Ltd [1997] 8 BLLR 1092 (LC), involving alleged unfair dismissal on grounds on age, and Louw v Golden
Arrow Bus Services (Pty) Ltd [2000] 3 BLLR 311 (LC), involving and alleged unfair pay discrimination on
grounds of race, in both of which absolution from the instance was granted, with Ntai & others v South
African Breweries Ltd [2001] 2 BLLR 186 (LC) where, on an interpretation of the burden of proof in the
light of the Constitutional Court’s jurisprudence, absolution was refused.
83
[2000] 3 BLLR 311 (LC).
84
At par 37, with reference to Enderby v Frenchay Health Authority [1993] IRLR 591 (ECJ) at 595.
85
In the sense discussed at pp 10 and 16 above.
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APPENDIX
Woolworths (Pty) Ltd v Whitehead
[2000] 6 BLLR 640 (LAC)
A Critical Overview86
The facts
Beverley Whitehead was a few months’ pregnant when she was interviewed for a
permanent managerial position at Woolworths by a Mr Inskip, head of information
technology, on 17 December 1997. It was the second time that her appointment had been
discussed. A few months earlier she had actually been offered the position but had turned
it down for personal reasons. Unable to fill it, Woolworths had readvertised the post and
invited her to reapply.
At this interview Whitehead mentioned her pregnancy and thought that the interview
went very well. Two days later Inskip left a message on her voicemail asking her to
contact him – according to him, “to take their discussion further”; according to her, “to
finalise the paperwork”.
But when she phoned back the next day Inskip was less positive. He wanted to know if
she was looking for a permanent or a temporary appointment – a matter which had
already been settled at the interview. According to Whitehead he informed her that her
pregnancy was the reason why Woolworths were reluctant to offer her a permanent
appointment. This was denied by Inskip.
Three days later Inskip offered her a five-month contract – a contract that would expire
just before her confinement. She turned it down and instituted action against Woolworths
on grounds of unfair dismissal (which was ruled out by the Labour Court and not
pursued) and, in the alternative, unfair discrimination on grounds of pregnancy.
The litigation
The Labour Court found in Whitehead’s favour and awarded her R200 000
compensation, based on loss of earnings, plus costs. Woolworths appealed to the Labour
Appeal Court. Two of the three judges of appeal (Zondo AJP and Willis JA) found that
Woolworths’ reason for not employing Whitehead was not because she was pregnant but
because they had found a better candidate in the person of a Dr Young whose
qualifications and experience were far superior. There had therefore been no
discrimination – Ms Whitehead had simply been defeated by a stronger competitor.
Edited summary of a speech delivered by the author to a meeting organised by the Congress of
South African Trade Unions, Cape Town City Hall, May 2000.
86
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This decision was reached even though Woolworths had interviewed Dr Young only after
offering Whitehead the temporary appointment, which she refused.
The third member of the Court, Conradie JA, found it more likely on the evidence that
Inskip had indeed offered Whitehead a permanent position (at paragraph 36 of the
judgment) but was persuaded by his superior to reverse it (at paragraph 44) and that she
was rejected because of her pregnancy.
Woolworths’ appeal was therefore upheld with costs.
‘Fair’ and ‘unfair’ discrimination
All three judges went on to express views on the question of whether, or to what extent,
an employer is entitled to discriminate against workseekers on grounds of pregnancy.
Although these views were irrelevant to the issue on which the case was decided, and are
therefore not binding on the Labour Court, they give an indication of the reasoning that
might surface in the Labour Appeal Court in future cases of this nature. They may also
influence judges as well as employers in the way that they view the rights of pregnant
women, and should therefore be taken seriously.
The case was decided in terms of item 2(1)(a) of Schedule 7 to the Labour Relations Act
(LRA)87 which prohibits discrimination on a number of grounds including sex, gender
and family responsibility. To this the Constitution (followed by the EEA) adds a specific
prohibition of discrimination on the grounds of pregnancy.
Item 2(1)(a) does, however, state that such discrimination is not unfair if it is based on the
‘inherent requirements of a job’. Woolworths alleged that the person appointed to the job
would need to perform it for a continuous period of at least one year. The reason for not
employing Ms Whitehead was therefore not her pregnancy but her non-availability.
The Labour Court found that, while Woolworths clearly had an interest in continuity of
service, they did not establish that it was really essential for this particular job. Two of
the judges of appeal (Zondo AJP and Conradie JA) agreed with the Labour Court that the
‘inherent requirements’ of the job could not have justified Woolworths’ refusal to employ
Whitehead.
This means that an employer’s preference based on factors of expediency or financial
interest, or the inconvenience resulting from an employee’s absence, is in itself not
enough to justify discrimination on the basis of pregnancy or sex.. There must be
additional reasons making it impossible or impracticable to appoint the applicant in
question.
Willis JA took a somewhat different view. He accepted that, even if Whitehead were the
most suitable candidate, the fact that she was pregnant meant that she was or would be
87
Now replaced by s 6 of the Employment Equity Act 55 of 1998.
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‘unavailable’ for the job and that this could legitimately influence the employer’s
decision (paragraph 133).
This finding goes to the root of the prohibition of discrimination on grounds of
pregnancy. The main effect of pregnancy on employment to make the employee
temporarily ‘unavailable’ for work. If discrimination against a pregnant woman on
grounds of her ‘non-availability’ is allowed, it is difficult to see what remains of
protection against discrimination on grounds of pregnancy.
In slightly different vein Zondo AJP found that Whitehead’s pregnancy was not the main
reason for rejecting her but accepted that it was ‘taken into account against her’ (at
paragraph 24) in that it ‘reduced her rating in terms of prospects for the job (at paragraph
17).
This finding is equally problematical. It suggests that discrimination on grounds of
pregnancy (or race, or sex) is permissible provided it is not the main reason for rejecting
an applicant. This goes against international precedent. A more acceptable view is that, to
the extent that Whitehead was ‘reduced in rating’ – given that this was not justified by
the inherent requirements of the job – the decision not to employ her was tainted by
unfairness.
Other findings
Though not called on to do so, Willis JA went on to rule that section 6(1) of the
Employment Equity Act (which specifically prohibits discrimination on grounds of
pregnancy) would not have assisted Whitehead. The reason, according to the learned
judge, is that the prohibition applies to discrimination in the context of an ‘employment
policy or practice’ and one incident, in Willis JA’s view, does not constitute a ‘policy or
practice’. The implication is that employers are free to discriminate on any ground – for
example, race, sex or religion – so long as they do it only in isolated cases and do not
make a ‘policy’ or ‘practice’ of it.
If so, this would fatally undermine one of the main purposes of the EEA: the prevention
of unfair discrimination against employees.
Willis JA further suggested that the purpose of item 2(1)(a) is mainly to prevent
discrimination caused by ‘bigotry or prejudice’ (paragraph 131). It is trite, however, that
the intention behind an act of discrimination is irrelevant. Discrimination is prohibited if
it is unfair towards the worker or workseeker, not only if it was maliciously intended.
Willis JA made a number of other pronouncements which, though obiter, imply an
erosion of the protection of workers and workseekers against unfair discrimination. ‘To
hold that an employer cannot take into account a prospective employee’s pregnancy,’ he
stated, ‘would be widely regarded as being so economically irrational as to be
fundamentally harmful to our society’ (paragraph 136). A ruling in favour of Whitehead
JUSTIFICATIONS FOR SEX DISCRIMINATION IN THE WORKPLACE
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would, in his view, ‘favour elites’ and ‘act to the detriment of the poor’ by impacting
negatively on the economy and its capacity to create jobs (paragraphs 145-147).
It is undeniable that providing equal opportunities to pregnant women may place a
financial burden on employers, although a relatively limited one. The same applies, to a
much greater extent, to benefits such as paid leave and paid sick leave, which are
applicable to all employees. Such burdens are seen to be justified by the greater goal of
enabling all workers (men and women) to enjoy fair working conditions, lead productive
lives and contribute to the economy. It is difficult to accept that the limited cost
associated with pregnancy in employment constitutes a national barrier to job creation.
Willis JA furthermore disagreed with Conradie JA that Whitehead could have performed
part of her work from home by telephone, fax or email during her maternity leave.
Referring to ‘African, Hindu, Muslim and Chinese’ cultures, he argued that ‘the first few
weeks of a child’s life should be a special time with its mother’ (paragraph 143). We
should not, he stated, ‘cultivate the idea that motherhood is entirely secondary to the
greater glories of job satisfaction’.
This view has extraordinary connotations. It suggests that certain traditional views on a
woman’s role in life must prevail over the fundamental right to equality which is
enshrined in the Constitution. In fact, no woman is compelled to work and every mother
is free to stay with her children if she so wishes. Section 25 of the Basic Condition of
Employment Act88 in any event prohibits an employee from working for a period of six
weeks after the birth of her child unless she has been certified to be medically fit to do so.
The inference of the view put forward by Willis JA, however, is that a woman should not
have the right to work under these circumstances but that an employer should be entitled
to refuse her employment on the grounds that she has a child to care for.
Finally, Willis JA appeared to see the birth rate in South Africa as a further reason
justifying a lesser degree of protection for women against discrimination on the basis of
pregnancy. ‘[L]ow birthrates’, it was found, are a reason for the European rule whereas in
South Africa ‘[w]e are not that desperate to encourage the arrival of new citizens’
(paragraph 144).
The sequel
Whitehead did not abide by the judgment of the Labour Appeal Court and was preparing
to take the matter to the Constitutional Court when the parties reached a settlement out of
court. There, for the moment, the legal issues rest.
Many labour lawyers are of the view that the judgment has left the law relating to unfair
discrimination on the basis of pregnancy in a thoroughly unsatisfactory state. Firstly, it is
a matter of concern that the highest labour court in the land has spoken with such a
divided voice on an issue of such sensitivity and left important questions in doubt. How
much weight, for example, should be attached to the views expressed by Willis JA?
88
Act 75 of 1997.
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Even more importantly, however, the decision that was reached is seen by many as
retrograde and erosive of the protection of basic human rights established in earlier case
law. It is to be hoped that, should the issue again come before the Labour Appeal Court
or Constitutional Court, it will be reconsidered.
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