An overview and critique of the labour courts' interpretation and application of protection against indirect forms of unfair discrimination as provided for in South Africa's employment equity act

Abstract

Unfair discrimination is deeply woven into the fabric of South African society. In the post-apartheid constitutional era, the Constitution guarantees the right to equality in the pursuit of "the full and equal enjoyment of all rights and freedoms". This reflects the adoption of substantive equality, which goes beyond mere formal equality. The constitutional right to equality is grounded in two constitutionally mandated mechanisms: affirmative action, and the prohibition of unfair discrimination. Within the broader transformative vision of the Constitution, the prohibition of unfair discrimination plays a dual role: it serves as a baseline for the defence of formal equality; and it acts as a tool of transformation, particularly through the protection against indirect unfair discrimination. Protection against indirect unfair discrimination is also provided in section 6(1) of the Employment Equity Act. In a transformative context, protection against indirect discrimination is particularly significant because it recognises that equal treatment can sometimes perpetuate inequality. By uncovering and dismantling hidden barriers and power structures in the workplace, protection against indirect unfair discrimination plays a crucial role in fostering substantive equality and driving long-term, systemic change. Yet, despite its transformative potential, the application of protection against indirect unfair discrimination in South African labour jurisprudence has been limited. Against the aforesaid background, the article provides an overview of the approach adopted by South African labour courts to the protection against indirect unfair discrimination under South African labour law, while ultimately critiquing it.