Abstract
In Damons v City of Cape Town (2022), by a majority, the Constitutional Court held that the inherent requirements of the job defence in s 6(2)(b) of the Employment Equity Act is a complete defence to a charge of unfair discrimination in respect of an employee who has no capacity to perform the job in question due to a disability that cannot be rehabilitated or reasonably accommodated. By contrast, in a sole dissent, Pillay AJ held that s 6(2)(b) is not a complete defence where the employer ought to have created a new position to fit the capacities of the employee as a reasonable accommodation measure. This commentary explores the implications of the Damons case and appraises the divergent approaches of the Constitutional Court.
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