An Overview and Critique of the Labour Courts' Interpretation and Application of Protection Against <i>Indirect</i> Forms of Unfair Discrimination as Provided for in South Africa's Employment <i>Equity Act</i>

This article examines the relationship between affirmative action and protection against indirect discrimination in South African employment law, particularly under the Employment Equity Act 55 of 1998. Ultimately, the article aims to establish the extent to which reliance on indirect discrimination protection still plays a role outside the shadow of the EEA’s affirmative action measures. While both mechanisms aim to promote transformative substantive equality, they do so through distinct, yet overlapping, means. Affirmative action imposes proactive obligations on designated employers to address systemic disadvantage, potentially reducing the scope for indirect discrimination claims. However, this article argues that indirect discrimination remains a crucial safeguard, especially in contexts where affirmative action is absent, poorly implemented, or limited in scope. Key limitations of the EEA’s affirmative action measures include its application only to designated employers and its focus exclusively on race, gender and disability. Additionally, the enforcement of affirmative action obligations relies solely on administrative mechanisms, offering little recourse for aggrieved individuals. The article argues that indirect discrimination protection fills these gaps by identifying and addressing covert systemic inequalities. Ultimately, the article asserts that indirect discrimination retains significant legal and transformative value, particularly as a corrective mechanism for structural inequality. It concludes that affirmative action and indirect discrimination should be viewed as complementary tools rather than substitutes in pursuing equality and social justice in post-apartheid South Africa.

The Employment Equity Act 55 of 1998 (hereinafter “the EEA”) which gives more detailed content to the right of equality enshrined in section 9 of the Constitution of South Africa, compels employers to promote equality in the workplace by eradicating unfair discrimination in employment policies and practices. Unfair discrimination against any employee, whether directly or indirectly, based on that employee’s race, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age,disability, religion, HIV status, conscience, belief, political opinion, culture, language or birth is prohibited (s 6(1)). However, it is not unfair discrimination to take affirmative action measures consistent with the purpose of the EEA (s 6(2)). If an employee is thereforedifferentiated against due to affirmative action measures of the employer, such an employee will not succeed in an action based on unfair discrimination, provided that the employer acted within the permissible bounds of affirmative action. It has in fact been held by the South African Constitutional Court that any action in accordance with permissible affirmative action policies does in fact not amount to unfair discrimination (Minister of Finance v Van Heerden (2004) 25 ILJ 1593 (CC)). Affirmative action is therefore raised by employers as a justification for apparent unfair discrimination. If the justification is successful the particular court will conclude that there was no unfair discrimination. Affirmative action in this context is used as a shield, not a sword (see Dupper and Garbers“Commentary: Affirmative Action” in Thompson and Benjamin (eds) South African Labour Law Vol 1 (2002) 1-59). But can affirmative action be used as a sword? Can an employee (as envisaged in the EEA) argue that he or she is a victim of discrimination because his or her employer did not apply affirmative action measures consistent with the EEA? Is such a person also the victim of unfair discrimination? Can such a person base an application on section 6 of the EEA? This question may seem strange (see Grogan Dismissal, Discrimination and Unfair Labour Practice (2005) 93) and will in all probability not arise where only formal discrimination is at issue. In South Africa, however, where the ultimate goal is the achievement of substantive equality however, the issue needs consideration. Substantive equality can only be achieved if the distortions created by apartheid are removed and employers are compelled to give preference, at least for a while, to members of groups that were disadvantaged by unfair discrimination in the past. This question was addressed in two cases (Harmse v City of Cape Town (2003) 24 ILJ 1130 and Dudley v City of Cape Town (2004) 25 ILJ 305 (LC)). Both cases brought were against the City of Cape Town in the Labour Court. The purpose of this note is to analyse and evaluate the opposing judgments in these cases.

European Union (EU) anti-discrimination law has developed under a mostly formal, procedural Aristotelian approach to equality, driven by seminal European case law and incorporated into a body of EU non-discrimination directives. The academic literature has criticized this approach as formalistic and static (Formal equality, non-discrimination and European Union (EU) law section). Against this backdrop, this article explores how the Court of Justice of the EU (CJEU) embraces substantive equality dimensions of non-discrimination. It documents standout cases supporting substantive equality in direct and indirect discrimination (Direct discrimination is less formal than meets the eye and Indirect discrimination is substantive at heart sections). It explores how the CJEU has promoted substantive equality in cases of non-discriminatory differential treatment (Compulsory differential treatment makes formal equality substantive section) and through positive action or discrimination (Positive action can become substantive positive discrimination section). It unearths a wider scope for substantive positive discrimination when constructed as a limitation of, rather than an exception to, formal equality (Substantive positive discrimination can limit formal equality section). It frames the evolution towards substantive equality in the broader fundamental rights context that has become the EU law context, as applied in seminal CJEU cases (Formal anti-discrimination supports and reflects overall substantive equality section). It shows how formal EU equality law has always supported substantive equality and has gradually been mobilized to further substantive equality aims, redefining piecemeal the overarching purpose of EU equality law in the process while increasing concerns of transparency and legitimacy (Conclusion: pragmatism, discretion and legitimacy section).

markdownabstract__Abstract__ This article aims to answer the question of whether duties of reasonable accommodation on the basis of religion can and should be identified by the European Court of Human Rights. Throughout the article, it is emphasised that duties of reasonable accommodation are ultimately about realising equal opportunities and thus substantive equality by levelling out the playing field and evening out barriers to full participation. Duties of differential treatment under the prohibition of discrimination and the prohibition of indirect discrimination are both general in application and, arguably, provide a solid basis for duties of reasonable accommodation, including those relating to religion. Consequently, it is argued that identifying these duties of reasonable accommodation would seem to be a logical development of the Court’s jurisprudence. It will be argued that the potential tension with the prohibition of discrimination (regarding those that cannot benefit from the accommodation measures) can be solved when an asymmetrical approach to the scrutiny of suspect grounds is adopted. Similarly, the apparent conflict with duties of state neutrality under the freedom of religion disappears when an inclusive vision of state neutrality is followed. When reasonable accommodation measures trigger controversies, this should be countered by awareness raising about the intrinsic connection of reasonable accommodation measures with substantive equality.

ABSTRACTInfertile employees who utilise surrogacy or adoption to expand their family need time off from work to meet their statutory parental obligations. However, South African law does not provide leave for these unique circumstances at present. The disparity in available leave to conventional and unconventional parents demonstrates differential treatment, and possibly unfair discrimination. Since infertility is not a specified ground in South African discrimination laws, an employee would have to argue discrimination on an unspecified ground which imposes a heavier burden of proof. To provide better protection to employees, it would be desirable to consider infertility as a disability – which is a specified ground. In considering relevant national laws and applicable international standards, this study aims to establish whether infertility could be regarded as a disability for purposes of the South African labour law and if so, whether it could be argued that the disparity in the provision of leave amounts to indirect disability discrimination. Should the risk of discrimination arise, it would require that a measure of reasonable accommodation be afforded to infertile employees by providing leave in surrogacy and adoption circumstances. A failure to do so could lead to a finding that unfair indirect disability discrimination occurred.

Die beperkings van regstellende gelykheid

Prohibiting indirect discrimination has been hailed as guaranteeing substantive equality by addressing issues of structural discrimination and inequalities in a way that direct discrimination cannot and will not. However, Article 14, the ECHR's non‐discrimination provision, does not distinguish between direct and indirect discrimination. Only in 2007 the European Court of Human Rights explicitly included the notion of indirect (race) discrimination under Article 14 in DH and Others v Czech Republic, its famous judgment on Roma education segregation. Since then it has applied the prohibition of indirect race discrimination in a limited manner to similar education cases. However, in its recent Grand Chamber decision, Biao v Denmark, the Strasbourg Court started clarifying some unsolved issues in the distinction between direct and indirect discrimination in its case law and finally applied the concept to the much broader area of immigration and citizenship.

The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA) prohibits indirect and direct unfair discrimination in terms of the grounds listed in the act (such as race, sex, and sexual orientation) as well as unlisted grounds (which are to be alleged and proven by an applicant). South African courts had also grappled with the specific issue of indirect unfair discrimination prior to the enactment of PEPUDA, where applicants could rely on the Constitution of the Republic of South Africa, 1996 directly. This is evident in cases such as Pretoria City Council v Walker 1998 2 SA 363 (CC) and S v Jordan 2002 6 SA 642 (CC). This contribution is an analysis of the pioneering judgment in Social Justice Coalition v Minister of Police 2019 4 SA 82 (WCC) (SCJ case), wherein a South African court for the first time recognised poverty as a ground of indirect discrimination under PEPUDA. This conclusion flows from the court's finding, based on expert evidence that the formula used to allocate police resources in the Western Cape unfairly discriminates against poor and Black people in an indirect manner. The analysis of the SCJ judgment will take place against the backdrop of the antidiscrimination framework under PEPUDA and direct constitutional litigation that predates PEPUDA. The underlying theme of intersectionality will also be discussed, as it was apparent from a reading of the SCJ case that grounds of discrimination often intersect with one another and disproportionately affect certain groups of people.

One of the purposes of the Employment Equity Act 55 of 1998 ('EEA') is to achieve equity in the workplace by promoting fair treatment and equal opportunity through eliminating unfair discrimination (section 2(a) of the EEA). Section 5 of the EEA obliges every employer to take steps to promote equal opportunity in the workplace by eliminating unfair discrimination in any employment practice or policy. Section 6(1) of the EEA then prohibits unfair discrimination against employees on a number of grounds which includes an arbitrary ground. Van Niekerk et al state that sections 5 and 6 of the EEA contain a generally expressed obligation to promote equality through the elimination of unfair discrimination as well as the prohibition of unfair discrimination on a list of specified and other grounds (Van Niekerk et al Law@work (2023) 131). Du Toit et al state that the EEA proscribes unfair discrimination as part of its wider purpose of promoting employment equity (Du Toit et al Labour Relations Law: A Comprehensive Guide (2023) 766).- please remove 'et al' and list all the authors.

South Africa has a very advanced system of anti-discrimination legislation. In the labour law sphere, the relevant legislation includes the Employment Equity Act of 1998, the Labour Relations Act of 1995 and, of course, the Constitution of 1996. This article focuses on two prohibited grounds of discrimination, namely disability and HIV/Aids. HIV/Aids is nearing epidemic proportions in South Africa and its impact on individuals, the economy as well as the general prosperity of the country cannot be denied. Disabled persons constitute one of the designated groups, for purposes of affirmative action, in terms of the Employment Equity Act. Although both direct and indirect unfair discrimination is prohibited in all workplaces in South Africa, such protection has to be implemented and enforced by labour legislation and the courts. This article investigates the success achieved to date in protecting employees in workplaces from both unfair labour practices and unfair discrimination because of their HIV/Aids status or their disability. Job applicants are also protected by anti-discrimination legislation and it has become evident that the constitutional court is not hesitant to come to the assistance of this category. The case of Hoffmann v. SAA (see also Woolworths v. Whitehead) is discussed. The author comes to the conclusion that present anti-discrimination laws provide the courts with ample scope to act as guardian of employees as well as job applicants in this area of law. If the courts adopt an approach that recognises substantive equality, as the constitutional court, if not the labour court, has done, this could assist the community in refraining from unfairly discriminating against certain vulnerable groups in society. This discrimination is, after all, often based on unfounded assumptions and generalisations.

Problem setting. Because of the transformational processes in socio-political life, the problems of ensuring equal treatment of equals and different – to persons who have other, characteristic of certain groups of people, characteristics are becoming increasingly important. Analysis of resent researches and publication. Such scholars as O. Vasylchenko, O. Vashanova, D. Hudyma, N. Dryomina-Volok, B. Nedelek, N. Onishchenko, O. Pankevych devoted their works to the issue of the principles of equality and non-discrimination, in particular in the decisions of the European Court of Human Rights. Target of research. The purpose of this work is to carry out a comparative legal analysis of the scope of the two concepts, namely the “prohibition of discrimination” provided for in Art. 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms and the “General Prohibition of Discrimination”, which is enshrined in Art. 1 of Protocol № 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms. An additional purpose of this paper is to present ways to overcome the problem of discrimination in Ukrainian society and the problems of legal regulation of discrimination prevention. Article’s main body. Publication is devoted to the analysis of the prohibition of discrimination under Art. 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms and Art. 1 of Protocol № 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms. International legal acts, which enshrine the provisions on the prohibition of discrimination, have been studied. A comparative legal analysis of the “prohibition of discrimination” and the “general prohibition of discrimination” was made. The author also draws attention to the problems of applying the provisions on non-discrimination in practice. The publication provides a thorough analysis of the case law of the European Court of Human Rights. The characteristic features inherent in the concept of discrimination are indicated in the decisions of the European Court of Human Rights. Positive, negative and procedural responsibilities for prohibiting and combating discrimination are disclosed. In this article investigated the positive duty of the state as ensuring “application of different law in different circumstances”. Regarding negative obligations, the very construction of the prohibition of discrimination implies that states refrain from any unjustified discriminatory treatment in their legislative and law enforcement activities. As for procedural obligations, states should effectively investigate such cases in the event of discrimination. Conclusions and prospects for the development. The construction of the prohibition of discrimination presupposes a certain set of characteristics characteristic only of it. The scope of the general prohibition of discrimination has been significantly increased since Protocol No. 12 was opened for signature by the member states of the Council of Europe. Given that the ECHR is a “living document”, the indicative list of protected features of non-discrimination is being expanded by the case law of the ECtHR. Unfortunately, the general level of tolerance, including that of public authorities, leaves much to be desired.

Despite the Constitutional guarantees of equality under the Constitution of India, women face deep-rooted structural discrimination in public sector workplaces. While explicit discrimination isn’t as common, indirect discrimination remains a persistent, under-recognized challenge, existing in forms of policies, practices, and institutional cultures. Mere formal equality is inadequate in dealing with the structural barriers, such as gendered promotion tracks, caregiving penalties, discriminatory service rules, and workplace cultures that devalue women’s contributions. Courts have often stepped in to expose and address these forms of structural bias, especially through a series of progressive judgments. This paper tracks the judicial journey of addressing indirect structural discrimination starting from Air India v. Nargesh Meerza (1981) to Secretary, Ministry of Defence v. Babita Puniya (2020). Together, these judicial milestones lay the foundation for understanding how constitutional interpretation has evolved to recognize gender bias not just in overt policies but also in the subtle, everyday practices that continue to disadvantage women in public employment. The authors, through this paper, also explore the contemporary manifestations of structural discrimination in Indian public institutions, like rigid working hours and lack of support for caregiving, gendered expectations in promotion and appraisal systems, unequal access to decision-making roles, and inadequate grievance redressal systems for harassment and bias. The paper aims to expose that while judicial recognition of indirect discrimination has advanced, the same doesn’t prove true in the case of administrative reform, which still to this day remains inconsistent. The final section of the paper proposes concrete remedial strategies, including gender audits in public offices, affirmative action in promotions and robust enforcement of anti-discrimination guidelines. Through a legal lens, the paper asserts that realizing true equality for women in public employment requires more than protective-laws, it demands structural change, catalyzed and sustained by an active, empathetic, and reform-oriented judiciary.

This note analyses the recent landmark case of Lt Col Nitisha v Union of India, dated 25 March 2021, where the Supreme Court of India formally recognised the concept of indirect discrimination under Articles 14 and 15(1) of the Indian Constitution. Despite the favourable outcome and conceptual leaps in acknowledging that indirect discrimination is closely tied to substantive equality, the reasoning in the judgment does not fully cohere with these conceptual insights. This note critically examines how Nitisha poses barriers to addressing indirect discrimination with a substantive equality lens, particularly because of an intent-based divide between direct and indirect discrimination, a causal requirement between the norm and disparate impact, adoption of mirror comparators and the lack of clarity on justifications.

Sexual Orientation and the Prohibition of Discrimination - Both on the international level as in several national jurisdictions there is a growing amount of case law considering difference in treatment on the grounds of sexual orientation as unfair discrimination. Anti-discrimination arguments have been used both with regard to matters of conduct as with regard to status issues. The author argues that there are good reasons to treat sexual orientation as a ground for discrimination. An equality approach towards sexual orientation, compared to the more traditional right to privacy rationale, has some major strategic advantages for those seeking to improve the position of non-heterosexuals. Whereas the right to privacy is essentially a negative right against unacceptable state interference, particularly suitable to challenge the criminalisation of sexual conduct, anti-discrimination laws can be the basis for more positive claims of those treated unequally. In addition, there are some more fundamental arguments in favour of an equality approach. The sole reliance on the right to privacy serves to perpetuate the idea that "dissident' sexual orientations are inherently immoral. The author points out that the view that 'dissenting' sexual activities can be tolerated in the private sphere cannot be considered as a very emancipating claim. As an alternative, the recognition of the more affirmative right not to be discriminated against on the basis of one's sexual orientation is proposed. Such a right embodies the idea that there is an intrinsic worth in sexual selfdetermination.

This article argues that the requirement of group disadvantage in indirect belief discrimination is incompatible with the human right to freedom of thought, conscience and religion. The latter protects sincerely held beliefs even if they are not shared by others or part of group orthodoxy. Consequently, the group disadvantage requirement in indirect belief discrimination ought to be interpreted away under section 3 HRA. Doing so, it is argued, does not give an unfair advantage to beliefs over other aspects of personal identity and complies with the legal injunction against judicial involvement in theological or philosophical disputes. The article concludes by arguing that, in light of the UK case law, imposing a requirement of group disadvantage is likely to pose a more significant barrier to secular philosophical beliefs than to religious ones. In light of an understanding of secularism that requires equal treatment of religious and deeply held secular beliefs, it is imperative that such a barrier be dispensed with.