What is unfair discrimination really?

Dr Johannes Jacobus van der Walt deconstructs the meaning of discrimination in the South African context.

The meaning of discrimination is important to all who live in South Africa, particularly considering the country’s historical and political context. Consequently, this article explores the meaning of discrimination, as contemplated in section 9(3) and section 9(4) of the Constitution of the Republic of South Africa, 1996 (Constitution) and section 6 of the Employment Equity Act (EEA).

Section 6(1) of the EEA reads as follows:

"No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, birth or on any other arbitrary ground." [own emphasis]

The Labour Court (LC), in its recent judgment of Naidoo v Parliament of the Republic of South Africa(Naidoo), handed down on 12 December 2018, answered an important (but until now, elusive) legal question: what is the meaning of "any other arbitrary ground"?

Arbitrary grounds

The Naidoo judgment aside, the meaning of "any other arbitrary ground", must be informed by the meaning of discrimination in the constitutional sense.

Differentiation between people or categories of people lies at the heart of the South African equality jurisprudence, generally, and section 9 rights, in particular. The right to equality (i) seeks to address the mischief created by legally prohibited differentiation and (ii) remedy its consequences. Only once this fundamentality of equality is understood and appreciated can we speak the language of equality and, thereby, attribute meaning to the term discrimination.

Firstly, the purpose of the right to equality is a concern with and a prohibition of any rule or conduct differentiating between people or categories of people that constitutes unequal treatment or unfair discrimination in the constitutional sense. Secondly, equality is concerned with and influenced by a recognition that the unjust consequences of prolonged unfair discrimination requires rectification – through the auspices of fair discrimination – failing which the consequences of unjust hegemonic and bigoted treatment of people will reign supreme. Equality delayed is equality denied.

The focus of this article is the prohibition of any rule or conduct differentiating between people or categories of people that constitutes unfair discrimination. This prohibition is known as the prohibition against unfair discrimination and, in this regard, section 9(4) of the Constitution is relevant and provides that:

"No person may unfairly discriminate directly or indirectly against anyone on one or more grounds [including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth]."

To ensure effective governance and harmonisation of the interests of all inhabitants, and for the common good, the South African government must regulate the lives of its people. Such regulation is not possible without some differentiation and classification of people, which treats people differently and impacts people differently. The law differentiates between categories of people on many scores, which is unobjectionable and often unavoidable. A few examples include: the levels of income at which the rate of the tax assessed is fixed; ages when, or the length of employment before, pensions become payable; and the criteria for entitlement to the benefits of social welfare.


Discriminations vs differentiation

Discrimination, as opposed to mere differentiation, has acquired a pejorative meaning within South Africa, in that for differentiation to constitute discrimination, the ground(s) upon which persons or categories of persons are differentiated from each other must have the potential to impair human dignity.

It is trite that the grounds listed in the Constitution have one characteristic in common; namely, these grounds have the potential, when manipulated, to demean persons in their inherent humanity and dignity. To determine whether conduct constitutes discrimination, one must objectively determine whether the ground upon which people or categories of people are differentiated between has the potential to impair the fundamental human dignity of the persons or to affect them adversely in a comparably serious manner.

Revisiting the meaning of "any other arbitrary ground", for a ground to qualify as such, it mustobjectively be a ground that has the potential to impair the fundamental human dignity of persons or to affect them adversely in a comparably serious manner.

In Naidoo, the LC could not have interpreted the phrase "any other arbitrary ground" to mean anything else, since (i) the EEA is what is commonly referred to as 'constitutionally mandated legislation' and (ii) the EEA is contemplated in section 9(2) of the Constitution and its purpose is to give effect to the right to equality, which is inclusive of the prohibition against unfair discrimination.

In Naidoo, the Applicants are members of the Parliamentary Protection Services (PPS) and employed by Parliament (Respondent) as protection officers. In 2015, the capacity of the PPS was enhanced and two new positions were formed; namely, Control: Chamber Support Officer (CCS) and Chamber Support Officer (CSO). The appointment process was completed in two phases. Phase 1 entailed the creation of the new positions for which external candidates of the South African Police Services (SAPS) were invited to apply, since the existing PPS members did not have the necessary capabilities. A total of 37 appointments were made from the ranks of members of the SAPS and they were appointed on salaries higher than those earned by the Applicants. The remainder of the positions were earmarked to be filled from the ranks of the PPS, once certain processes, including training and mentoring, were completed. Arising from this, the Applicants have brought a wage discrimination claim in terms of the provisions of section 6(4) of the EEA.

Section 6(4) of the EEA provides that a difference in terms and conditions of employment between employees of the same employer performing the same or substantially the same work or work of equal value that is directly or indirectly based on any one or more of the grounds listed in section 6(1) of the EEA, is unfair discrimination.

In summary, the Applicants’ pleaded case was that the wage disparities constitute discrimination on an arbitrary ground and that those wage disparities are capricious, unfair, unreasonable, and unjustifiable. The grounds for arbitrary discrimination advanced by the Applicants were nepotism and length of service.

The LC, following reasoning similar to which is set out above, held that the "test for whether discrimination is established, is … whether, objectively [considered], the ground [on which there is differentiated] is based on attributes or characteristics which have the potential to impair the fundamental dignity of persons as human beings or to affect them adversely in a comparably serious manner" [own emphasis].

The LC went on to hold that the Applicants could not succeed in their claim, since they were unable to show that the grounds, as per their pleaded case, qualify as an arbitrary ground analogous to the listed grounds. The LC's conclusion is based on the 'fact' that the pleaded grounds (nepotism and length of service) "have nothing to do with attributes or characteristics which make the Applicants who they are and they do not impair upon human dignity in a comparable manner to a listed ground". The LC also held that the Applicants "failed to allege that the reason for differentiation is some characteristic that impacts upon their human dignity" and did "… did no more than attempting to describe the difference in pay as ‘arbitrary’, ‘capricious’, ‘unfair’, ‘unreasonable’ and ‘unjustifiable’".

Although the LC's finding as to nepotism is questionable, to say the least, it is important to realise that a complainant must succinctly and precisely set out (identify and define) the ground on which discrimination is alleged and that this ground is an arbitrary ground because it has the potential to impair the complainant's human dignity.

In conclusion, we as South Africans should not conduct ourselves in such a manner that would differentiate between people on a ground that has the potential to impair a person's human dignity. Simply put, do not differentiate or make distinctions between people that can negatively affect another's sense of self-worth.

Johannes is the associate designate in the Employment & Compensation Practice at Baker McKenzie. In this article, he has intentionally not addressed the element of unfairness contained in the prohibition against unfair discrimination, since this article concerns the meaning of discrimination, which hinges on grounds that have the potential to impair a person's human dignity. We have established that no South African ought to differentiate between people or categories of people on any ground that has the potential to impair another's human dignity. In the next instalment, focus is placed on fairness, which in turn, requires assessment of the impact of the discrimination a complainant to determine whether his or her human dignity has in fact been impaired.