Two of the most contentious areas of

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1 Contemporary Labour Law Vol 12 No 10 May 2003 The right of a job candidate to affirmative action selection : a landmark case? Harmse v City of Cape Town by Christoph Garbers Two of the most contentious areas of discrimination law - affirmative action and the procedure underlying unfair discrimination claims - were addressed recently in Harmse v City of Cape Town (Labour Court Case No 966/ 02 dd 9 May 2003). A number of similar cases brought by disappointed job candidates are currently being heard and it seems that the law in this area may shortly become marked by greater certainty as these matters are decided. As far as affirmative action is concerned, the court held that that there is a duty on all employers to implement affirmative action, and more importantly,that suitably qualified members of designated groups as defined in the Employment Equity Act, 1998 (the 'EEA') have a right to affirmative action (irrespective of whether the employer in question is a designated employer as defined by the EEA), and that the absence of affirmative action may found an unfair discrimination claim. This is in contrast to what seems to have become accepted discrimination dogma. Prior to Harmse, the prevailing view seems to have been that affirmative action is a shield, not a sword (see Abbott v Bargaining Council for the Motor Industry (1999) 20 ILJ 330 (LC) at 334 A- E. This case was decided in terms of the discrimination provisions of the residual unfair labour practice contained in the LRA (before its repeal by the EEA). This view holds that, even though the EEA does provide for a duty to implement affirmative action, this duty is confined to designated employers and no right to affirmative action exists. Under this view, the link between affirmative action and unfair discrimination claims would exist solely in section 6(2)(a) of the EEA, which provides that employers may use affirmative action consistent with the purposes of the EEA as a defense against allegations of unfair discrimination. As far as the procedure underlying unfair discrimination claims is concerned, the fact remains that applicants face significant hurdles in successfully pursuing these claims. In Harmse, the Court provides Managing Editor : P A K Le Roux Hon. Consulting Editor : Prof. A.A. Landman Published by Gavin Brown & Associates Box Sandton 2146 Tel : Fax:

2 some insight into what essential allegations should be made to support a discrimination claim. Of particular importance here are the judge s remarks relating to the absence of a difference between direct and indirect discrimination claims. On the face of it, Harmse (especially as far as affirmative action is concerned) does seem to be a landmark judgement. If correct, it in effect means that the Labour Court has unearthed a whole new dimension of equality in that a duty to implement affirmative action, mostly understood to be a selective, group-based measure which remains to be administratively enforced, is elevated to an individual right. With this in mind, the bulk of this contribution focuses on an evaluation of the reasoning adopted by the Court in finding the existence of such a right. A brief summary of the background and reasoning of the Court is given below. This is followed by an evaluation of the Court s reasoning on affirmative action followed by brief remarks about discrimination claims, specifically in the context of the difference between direct and indirect discrimination. Background to the decision Mr Harmse, a black person (as that term is defined in the EEA and therefore a member of a designated group for purposes of the EEA) applied for three posts with the City of Cape Town (although not mentioned, it is assumed the employer is a designated employer in terms of either paragraph (a) or (c) of the definition of that term in section 1 of the EEA). He was not shortlisted for any one of the posts in question. As a result, Harmse approached the Labour Court, alleging unfair discrimination against him on the basis of race, political belief and lack of relevant experience. (He also alleged that he was discriminated against on other arbitrary grounds, but not being able to specify these grounds as an applicant is required to do (see Ntai & Others v SA Breweries Ltd (2001) 22 ILJ 214 (LC)) - this claim was abandoned during proceedings). In support of his action against the employer, and as required by rule 6 of the Labour Court rules, Harmse filed a statement of claim setting out what purported to be a clear and concise statement of the material facts and legal issues relating to his claim. The employer reacted to this by bringing exception proceedings (as it is entitled to do) against the statement of claim on two legal grounds, namely that it did not disclose a cause of action and that it was vague and embarrassing. For present purposes, the exception that the statement of claim did not disclose a cause of action, raised in respect of all the grounds of discrimination relied upon by the applicant, is particularly important with regard to the alleged discrimination on the basis of lack of relevant experience. Whereas the employer s objection to the claim based on alleged discrimination on the basis of race and political belief related not to the existence of such a claim in law, but rather how it was pleaded, the employer s exception to the lack of relevant experience claim prompted the court to consider the existence of such a claim in law and to enter the realm of affirmative action. The employer also argued that, as a matter of law, applicants in discrimination claims have to specifically mention whether their claims are based on direct or indirect discrimination. Failure to do this, according to the employer, means that a case of unfair discrimination is not sufficiently pleaded (in that there either is no cause of action or the statement of claim is too vague to respond to). The reasoning of the judge in relation to affirmative action In dismissing the employer s argument, the Court accepted the following propositions: (1) Subsections 20(3)-(5) of the EEA, which introduce, define and regulate the concept of suitably qualified, even though located in chapter III of the EEA (which chapter primarily deals with the affirmative action obligation of designated employers), applies to all employers (not only designated employers) (see par 39 of the judgement). Section 20(3) contains the definition of suitably qualified, s 20(4) places an obligation on employers to take all the factors mentioned in the definition of suitably qualified into consideration in determining the suitability of a member of a designated group, while s 20(5) prohibits unfair discrimination solely on the basis of lack of relevant experience. (2) Section 5 of the EEA, although located in chapter II of the EEA (which is headed The Page 92

3 Prohibition of Unfair Discrimination ), places a duty on all employers to implement affirmative action (see par 39 of the judgement). (3) The decision whether a member of a designated group is suitably qualified is an employment policy or practice as defined in s 1 of the EEA (par 40 of the judgement) and as used in s 6 of the EEA, which contains the basic prohibition on unfair discrimination. As such, the determination whether a person is suitably qualified falls under one of the requirements for a claim of unfair discrimination laid down in s 6 of the EEA (which outlaws unfair discrimination in any employment policy or practice ). (4) Sections 20(3) (5) of the EEA can be linked to both the purpose of the EEA as set out in s 2(a) of the Act, as well as to the purpose of s 5 of the Act, which is the promotion of equal opportunity through the elimination of unfair discrimination (paras 40 and 41 of the judgement). (5) The list of grounds on which discrimination may take place (as mentioned in s 6(1) of the EEA) is not exhaustive and therefore can include lack of relevant experience (paras 41 and 42 of the judgement). As such, unfair discrimination on the basis of lack of experience may possibly be pursued under s 20(5) of the Act (if that section does contain an independent cause of action), or under s 6 of the Act (which contains the general prohibition of unfair discrimination). (6) The Constitution, 1996, in s 9, embraces a substantive notion of equality and there is a duty on the courts to fully develop the notion of substantive equality (par 45). (7) Affirmative action, in the constitutional sense of measures to protect or advance person or categories of persons disadvantaged by unfair discrimination, is part and parcel of the constitutional right to equality (it is not an exception to the right to equality) (par 46 of the judgement). (8) Affirmative action cannot only be a shield for employers. This would mean that the weak (the employee) is left without a remedy should employers fail to promote substantive equality. (par 46 of the judgement). A combination of the above led the Court to conclude (in paragraphs 47 and 49) that - [i]f an employer fails to promote the achievement of equality through taking affirmative action measures, then it may properly be said that the employer has violated the right of an employee who falls within one of the designated groups not to be unfairly discriminated against. Similarly, if an employer discriminates against an employee in the nondesignated group by preferring an employee from the designated group who is not suitably qualified, then the employer has violated the right of such an employee not to be discriminated against unfairly. In either case, the issue is whether the employer has violated the right of such an employee not to be discriminated against unfairly. To this extent, affirmative action can found a basis for a cause of action On an analysis of the Constitution and the [EEA] I am satisfied that the [EEA does] indeed provide for a right to affirmative action. The exact scope and boundaries of such a right is a matter that will have to be developed out of the facts of each case. Evaluation The conclusion reached in Harmse is far-reaching and has important implications, both conceptually and practically. The judgement is important and should be taken seriously but, this also means that it calls for close scrutiny. Three notions of equality, the Constitution and the purpose and structure of the EEA In the debate surrounding the concept of discrimination, a distinction is often made between three notions of equality equality in treatment, equality of opportunity and equality of outcome. Equality in treatment (also called formal equality or the symmetrical view of equality) simply means that discrimination exists where differentiation occurs on, for example, the basis of race ERRATA: The April 2003 issue of CLL was cited as "March 2003" on the cover page. The page numbering is nevertheless correct and we apologise for the inconvenience. Page 93

4 If an employer fails to promote the achievement of equality through taking affirmative action measures, then it may properly be said that the employer has violated the right of an employee who falls within one of the designated groups not to be unfairly discriminated against." Harmse v City of Cape Town or sex, irrespective of whether that differentiation is aimed at redressing past disadvantage. As such, formal equality or equality in treatment recognizes a prohibition on unfair discrimination, but abhors affirmative action. The equal opportunity approach, most often associated with legal developments at the European level, recognizes the danger of structural discrimination and the need to use transitional remedial measures. However, this is only allowed to operate to equalize the starting points of, for example, applicants for employment. In terms of this view, equality in outcome remains unacceptable, unless it is the natural result of equal opportunities. Equal opportunities, therefore, can never mean an obligation to effect a certain result. Ultimately, individual merit remains decisive. Equality of outcome (true substantive equality) sees a duty on the State to redress past disadvantage, is expressly assymetrical (in favour of disadvantaged groups ), expressly approves of a group based approach (and not individualism) in redressing past disadvantage and has, as its primary purpose, the elimination of that disadvantage. In the sequence mentioned, these notions of equality carry with them an ascending duty on employers, with only the last one (substantive equality) implying a duty, as part of the exercise of the managerial prerogative, to favour one group over another in terms of, for example, appointment or promotion in order to guarantee or promote a desired result. (For a discussion of these equality models and their practical implications, see Ockert Dupper Affirmative Action and Substantive Equality: The South African Experience (2002) 14 SA Merc LJ 275 at 278 ff.) Against this background, the Constitution, in s 9(2), tells us that the substance of the right to equality, (ie the value that is at stake), includes the full and equal enjoyment of all rights and freedoms. It already is clear from this formulation that the Constitution embraces equality of outcome (substantive equality). Should any doubt exist that this is the case, s 9(2) also provides that [to] 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. It is often said, and this was also the case in Harmse, that this provision makes affirmative action part and parcel of the right to equality. To some extent this is true. However, and for a number of reasons, one should be careful in equating affirmative action with equality. First, the Constitution itself tells us that measures may be taken to redress past disadvantages. This does not necessarily mean that they must be taken. In other words, it seems as if the Constitution allows for a duty to implement affirmative action to be imposed, but does not impose that duty itself. Second, the Constitution itself speaks of measures. As has been pointed out in an early case concerning affirmative action (see George v Liberty Life Association of South Africa Ltd (1996) 17 ILJ 571 (IC) at 592 F), affirmative action is a means to an end and not an end in itself. This means that, even if we accept affirmative action as integral to the achievement of equality, we have to remain wary of simply equating a measure (such as affirmative action) with a value (such as equality). Measures, by definition are pragmatic and temporary. Values, by definition and by way of contrast, are eternal. Thus, the very use of the word measures in the Constitution seems to preclude a generalised equation of affirmative action (as a measure) with equality (as a value) as the basis for finding the existence of a right Page 94

5 to affirmative action. Third, the Constitution says nothing about the question on whom a duty to implement affirmative action should be imposed, if at all. What it does say, is that the measures may be legislative in nature, but does not have to be. Presumably this could include both the executive or judicial imposition of such a duty, but then, as far as the courts are concerned, always within the jurisdictional parameters of the Courts as well as boundaries that exist in a democratic state between the judiciary, the executive and the legislature. In this regard, we have to remember that the question as to who should bear such a duty requires difficult political choices, best made by the executive and the legislature (as was the case with the EEA). Furthermore, the primary function of the Labour Court (as a creature of statute with limited, statutorily circumscribed, jurisdiction) is to interpret and apply legislation against the background of the Constitution, 1996, even to develop law, but not to create law. Fourth, and perhaps most importantly, the Constitution does not use the word affirmative action, nor does it give any indication what exactly these measures to redress unfair discrimination, or who exactly the beneficiaries of these measures, should be. As borne out by the Courts, the only requirement implicit in the Constitution is that these measures, such as they are, must be rational (see, eg Coetzer v Minister of Safety and Security (2003) 24 ILJ 163; Stoman v Minster of Safety and Security (2002) 23 ILJ 1020(T); PSA v Minister of Justice (1997) 18 ILJ 241 (T)). Thus, in constitutional terms, the EEA constitutes only one deliberate legislative vision of how past discrimination may be redressed and, for the reasons mentioned, there exists perhaps a more tenuous link between the EEA s vision of affirmative action and the constitutional right to equality than the court in Harmse was prepared to admit. In all fairness to the Court, however, it has to be said that the Court primarily searched for answers in the text of the EEA itself and that the Constitution was merely used to fortify conclusions reached through interpretation of the EEA. Against the background sketched above, including both the different notions of equality and the Constitution, the EEA declares its purpose in s 2 as: To achieve equity in the workplace by- (a) promoting equal opportunity and fair treatment in employment through the elimination of unfair discrimination; and (b) implementing affirmative action measures to redress the disadvantages in employment experienced by designated groups, in order to ensure their equitable representation in all occupational categories and levels in the workforce. At this point it is important to note two things about this provision. First, s 2 seems not only to incorporate the different notions of equality mentioned above, but also to maintain a distinction between them. Thus we find s 2(a) mentioning equal opportunity and fair treatment, while s 2(b) gives us a vision of true substantive equality (being affirmative action aimed at ensuring equitable representation ). Second, the Act, in s 2(a), specifically links equal opportunity and fair treatment to the elimination of unfair discrimination with no mention of affirmative action. The only mention of affirmative action is to be found in s 2(b) and then, by following the wording of s 9(2) of the Constitution, with specific reference to equitable representation. This already is a strong indicator that the drafters of the EEA were aware of the different notions of equality, that the elimination of unfair discrimination is seen as being more limited than affirmative action, that Contemporary Labour Law is published monthly from August to July of each year. Annual Subscription: R including VAT and storage binder. Subscription Enquiries : Tel : (011) Fax : (011) workplace.co.za Copyright held by the authors. No part of this publication may be reproduced in any form without the prior written consent of the publishers. Page 95

6 The Constitution does not use the word affirmative action, nor does it give any indication what exactly these measures to redress unfair discrimination, or who exactly the beneficiaries of these measures, should be. As borne out by the Courts, the only requirement implicit in the Constitution is that these measures, such as they are, must be rational they are two different things and that, in the final analysis, they should be kept distinct. The counterargument to this, and this seems to be implicit in the Harmse decision reasoning, is that a broad notion of equality (which we get from the Constitution) simply implies that the phrase the elimination of unfair discrimination (used in s 2(a) and 5 of the Act) includes affirmative action. As mentioned above, this argument is not constitutionally very clear cut and, as I have just tried to show, simply ignores the structure and wording of the EEA. Both the Constitution, 1996 and s 2 of the EEA are, of course, the primary determinants in the interpretation of the EEA (according to s 3 of the EEA). If s 2 of the EEA expressly follows the wording of the Constitution (in s 2(b)) and s 3 tells us how important the Constitution and s 2 are in understanding the EEA, why ignore half of s 2? The link between chapters II and III of the EEA As already mentioned, the main thrust of the reasoning in Harmse was based on interpretation of the EEA and concerned the existence of a link between Chapter II of the EEA, which is headed Prohibition of Unfair Discrimination, and Chapter III of the EEA, which is headed Affirmative Action. The establishment of such a link is, of course, necessary if one wants to recognise that there rests a duty on all employers to implement affirmative action, that all members of designated groups have a right to affirmative action and that the absence of affirmative action can constitute unfair discrimination (again, by all employers). In short, the Court found the link primarily in s 5 of the EEA (s 5 falls in Chapter II of the Act). The Court read a duty on all employers to implement affirmative action into that section and, consequently, held that the absence of affirmative action may found a claim of unfair discrimination against any employer. What these findings require is a careful scrutiny of the relationship between Chapters II and III of the EEA. As point of departure, one has to emphasise that the EEA deals with apparently different things - the prohibition of unfair discrimination and affirmative action - in different chapters of the Act (Chapters II and III respectively). This already adds further weight to the remarks made earlier about s 2 of the Act (which sets out the Act s purpose). We also know from the recent Constitutional Court judgement on the interpretation of s 197 of the LRA (see Nehawu v University of Cape Town (2003) 24 ILJ 95 (CC) at 114 A-C), that the location of a section in a particular chapter in an Act could be important in giving meaning to that section. At first glance then, the prohibition of unfair discrimination and the implementation of affirmative action should be kept distinct and s 5 has nothing to do with affirmative action. What confuses matters, however, is that the EEA itself contains a number of sections which clearly, or may conceivably, provide a link between Chapters II and III of the EEA. In this regard, the important sections are: sections 4 and 12. Section 4 provides that Chapter II of the Act applies to all employers and employees, while Chapter III only applies to designated employers, except where chapter III provides otherwise (this is reaffirmed by s 12); section 5 provides that [e]very employer must take steps to promote equal opportunity in the workplace by eliminating unfair discrimination in any employment policy or practice ; section 6(2)(a) provides that it is not unfair discrimination to take affirmative action measures consistent with the purposes of the Page 96

7 EEA; section 14 of the Act, which provides that nondesignated employers may notify the Director- General that they intend to comply with Chapter III of the Act as if it were a designated employer; section 15 of the Act, which describes affirmative action measures; and subsections 20(3) - (5) of the Act, which respectively contain the definition of suitably qualified for purposes of the EEA in general, places an obligation on employers to review all the factors mentioned in s 20(3) when determining whether a person is suitably qualified and prohibits employers, in making that determination, from unfairly discriminating against a person solely on the grounds of lack of relevant experience. Of these, s 6(2)(a) provides the most obvious link between the two chapters. It was the predecessor to s 6(2)(a) (then contained in the definition of an unfair labour practice in Schedule 7 to the LRA) that prompted the court in the Abbott case to declare that affirmative action is a shield, not a sword and which, speaking generally, has led in some quarters to the conclusion that affirmative action should be seen as an exception to unfair discrimination. In one sense, s 6(2)(a) is a necessary provision, providing the protection against allegations of racial, sex or disability discrimination that will (and have in practice) invariably arise from the express duty (at least on designated employers) to implement affirmative action. After all, as the Labour Court itself has recognised (see eg Auf der Heyde v University of Cape Town (2000) 21 ILJ 1758 (LC) at 1770 H), reliance by an employer on the defense of affirmative action constitutes acknowledgement of discrimination in terms of the approach to equality laid down by the Constitutional Court in Harksen v Lane 1998 (1) SA 300 (CC). Furthermore, such discrimination, based as it typically is on a listed ground of discrimination, will again in terms of Harksen - be presumed to be unfair. Thus, at least those employers designated by the EEA to implement affirmative action, clearly need s 6(2)(a) as a defence to rebut the presumption of unfair discrimination. Of course, what is also true is that this defence extends not only to designated employers, but to all employers. Furthermore, the defence does not require affirmative action as prescribed by the EEA, but affirmative action consistent with the purpose of the EEA. Any employer may (the Constitution and the EEA allow for this) take measures designed to redress past disadvantages, as long as these are consistent with the purpose of the Act. What is clear, however, is that s 6(2)(a), being a defence, cannot be construed as meaning, or supporting a meaning, that there exists a duty on non-designated employers to implement affirmative action. Of more importance is to read s 5 within the context of the whole Act. It is immediately apparent that the section does impose a duty on employers. But is this a duty on all employers to implement affirmative action? Section 5 describes the duty it places on employers as eliminating unfair discrimination, and the goal of this duty as promoting equal opportunity in the workplace. The use of this terminology also establishes a clear link between s 5 and s 2(a) of the EEA (remember that s 2 sets out the purpose of the EEA and only mentions affirmative action in s 2(b), not in s 2(a)). In other words, s 5 is about the elimination of unfair discrimination, which is clearly, according to s 2, something different to affirmative action. However, some of the provisions of Chapter III of the EEA, which may (in terms of s 4 and 12) apply to all employers, do create some confusion. In this regard, s 15(1) describes affirmative action measures as - measures designed to ensure that suitably qualified people from designated groups have equal employment opportunities and are equitably represented in all occupational categories and levels in the workforce of a designated employer. This section is open to two interpretations. One is to say that use of the term designated employer in s 15(1) means that the whole of s 15(1) only applies to designated employers (for authority see the Coetzer case, referred to above, at 170 F). Another is to say, bearing in mind s 4 and 12 of the EEA, that the section applies to all employers as far as equal opportunity is concerned, but only to designated employers as far as equitable representation is concerned. The point is, however, that even if the last-mentioned Page 97

8 interpretation is adopted, it places an obligation on all employers to promote equal opportunity, not to ensure equitable representation. In this regard, s 15(2) which is clearly stated to apply only to designated employers may conceivably be used to guide us in interpreting s 5 as long as those measures relate to equal opportunity and equal treatment and not equitable representation (affirmative action). This could conceivably include the identification and elimination of employment barriers, and even measures to further diversity and reasonable accommodation (ie the measures listed in s 15(2)(a)- (c)). However, it would exclude measures specifically aimed at equitable representation as this goes beyond the boundaries of equal opportunity. Subsections 20(3)-(5) of the EEA, included in a section headed Employment equity plan in the first instance explains what the term suitably qualified means for purposes of this Act. It also provides, as mentioned above, that in deciding whether a person is suitably qualified in terms of s 20(3), an employer may not unfairly discriminate against a person solely on the grounds of that person s lack of relevant experience. These are curious provisions. At a first level, these subsections again show a link between the elimination of unfair discrimination (as regulated in Chapter II of the Act) and affirmative action (s 20 is located in Chapter III of the Act). Furthermore, it would seem that the phrase for purposes of this Act means that the definition of suitably qualified in s 20(3) applies to the whole of the Act (as was expressly accepted in Harmse). However, the term suitably qualified also pops up in s 1 of the Act (containing the definitions) with a reference to s 20(3). Furthermore, the term suitably qualified appears only in s 15, 20 and 42 of the EEA. This means the term suitably qualified is given a specific meaning if and when it is used in the EEA. It is only used in three sections dealing with affirmative action and this leads to the conclusion that its operation is limited, in the final analysis, to those instances where a duty to implement affirmative action is placed on employers by the EEA in the first place. Admittedly, if s 15(1) is interpreted to place a duty on all employers to promote equal opportunity this would (on the wording of s 15(1)) also extend to suitably qualified members of the designated groups. But even so, it will at best remain a duty to promote equal opportunity, not to implement affirmative action. Thus, there simply seems to be no basis on which to read the definition of suitably qualified into a section (s 5) where no mention is made of the phrase. But even if such a basis exists, the duty only relates to equal opportunity. In short, the judgement ignores the deliberate use in the EEA of words laden with meaning in the discrimination context (the different notions of equality), overstates the role of affirmative action in Constitutional terms and provides too superficial an analysis of the structure and content of the EEA itself. Lastly, s 20(5) does, perhaps, create an independent ground of discrimination ( lack of relevant experience ), but it is submitted that this need not be the case. It is submitted that the section should be seen as part of the affirmative obligation on designated employers and a warning to all employers of what we all know namely that the exclusion of someone on the basis of lack of relevant experience may well constitute unfair discrimination by any employer on the basis of, for example, race or sex in terms of Chapter II of the EEA. In such a case, the discrimination could very well be indirect. Lack of experience may, conceivably, also constitute the basis for a direct discrimination claim in terms of Chapter II of the EEA, provided the Harksen v Lane test for the recognition of unlisted grounds of discrimination is met (which could also be the case). As such, it is simply not necessary to see s 20(5) as creating anything new or more significant than as explained above. In any event, the most s 20(5) does is to convert an indirect discrimination claim based on race, to a direct Page 98

9 discrimination claim against all employers based on lack of relevant experience. This, of course, does not mean that the conduct of the employer is unfair, nor that all employers are under an obligation to implement affirmative action, nor that the definition of suitably qualified should be read into sections of the Act where it is not found. Four further reservations The last areas of criticism that may be levelled against the judgement in Harmse, may be summarized by the words remedy, symmetry, necessity and content. As far as remedy is concerned, the Court in Harmse mentioned that if affirmative action were only a shield (and not a sword), it would leave the weak employee at the mercy of the powerful employer. This remark, of course, ignores two realities. First, the deliberate legislative choice inherent in the EEA (as evidenced by Chapters V and VI of the Act) was, in the first instance, to provide for self-regulation and administrative enforcement of the affirmative action obligations of designated employers. This is backed up by the possible loss of state contracts (see s 53) and the imposition of fines and other appropriate relief by the Labour Court. Second, should anything go wrong in the process of affirmative action (as envisaged by the EEA and not as envisaged in Harmse), the possibility of an unfair discrimination claim in terms of Chapter II of the Act always exists, but then subject to the principles governing that Chapter. As far as symmetry is concerned, I will do no more than express a reservation about the possibility in law of a diffuse, group-based obligation on selected employers giving rise to what is, in effect, an individual right that may be enforced on an individual basis against all employers (even though the actual content may differ). The more so in the absence of a clear indication to that effect in legislation. Third, as far as necessity is concerned, I cannot help but ask the question whether the affirmative action portion of the judgement in Harmse was really necessary and whether it simply was the accommodation of poor pleading. First, the employer in Harmse seems to be a designated employer. Second, as should be clear from the discussion above, the applicant could easily have reformulated his claim, without prejudice to the employer and with the sanction of the Court, to fall under Chapter II of the Act. Lastly, and as far as content is concerned, the question has to be asked whether, if the Court itself envisages that an employment equity plan at best creates a legitimate expectation for a member of a designated group, how the EEA in effect creates a right to affirmative action, which presumably may mean more. At most, a right to affirmative action (if it actually does exist) is a right of suitably qualified employees to be taken seriously, always subject to the discretion of an employer properly exercised. We should not fool ourselves that it could ever be a substantive right. The substantive right in question is and remains the right not to be unfairly discriminated against, as developed by the courts with regard to equality in treatment and equality in opportunity, not affirmative action. So what does all this mean? The discussion thus far has hopefully illustrated that there exist fundamental problems with the reasoning of Judge Waglay relating to affirmative action as measured against the nature of discrimination law, the different notions of equality, the provisions of the Constitution and the provisions of the EEA itself. In short, the judgement ignores the deliberate use in the EEA of words laden with meaning in the discrimination context (the different notions of equality), overstates the role of affirmative action in Constitutional terms and provides too superficial an analysis of the structure and content of the EEA itself. This simply means that no general duty to implement affirmative action, nor an individual right to affirmative action, can be read into the EEA. Neither can the absence of affirmative action be, in itself, a cause of action for an unfair discrimination claim. The extension of Chapter III of the Act to employers currently not designated would require legislative amendment. This may be the result of political momentum or of a finding that the EEA is unconstitutional as it unduly infringes on the right to substantive equality laid down in s 9 of the Constitution. This, in turn, would depend on a finding that the Constitutional equality provision places a duty on, amongst other, all employers to implement affirmative action. This, as already indicated above, is hardly clear-cut. Page 99

10 Pleading a case of unfair discrimination in terms of the EEA As mentioned in paragraph 2 above, the employer in Harmse also raised the point that an applicant in a discrimination claim has to indicate, in his or her statement of claim, whether the claim is one of direct or indirect discrimination. The Court, primarily for three reasons, rejected this point. First, it was mentioned that no authority in our law exists for this argument (par 16). Second, it was held that, given the requirement of a pre-trial conference laid down by the Rules of Court, sufficient opportunity exists for employers to identify the nature of the discrimination involved (see paras 9 read with para 17 of the judgement). Lastly, it was held that [t]he difference between direct or indirect discrimination lies in that which must be proved at trial. A respondent s defence to an unfair discrimination claim is no different to an unfair indirect discrimination claim. (par 19) There is no doubt that s 6 of the EEA extends a remedy where unfair discrimination is involved. The remedy primarily lies in unfair discrimination, not so much in the question whether it is direct or indirect. It is also true that the possible grounds of justification available to an employer are the same, irrespective of whether the discrimination is direct or indirect, these being the inherent requirements of a job, affirmative action or (possibly) a general fairness argument. However, an employer would like to respond to any unfair discrimination claim by doing one of three things. First, the employer may want to show that no differentiation exists. Second, the employer may try to break the link the employee seeks to establish between the differentiating policy or practice and the ground of discrimination in question (ie to cast doubt whether discrimination is at all present). Third, where the employee is successful in showing discrimination (or where no dispute exists about this), the employer may want to justify its actions. In all respects, the fundamental difference between direct and indirect discrimination places very different demands on both the applicant employee and the employer (perhaps less so, in case of justification). Whereas indirect discrimination is inherently statistical (based, as it is, on a disproportionate impact of an apparently neutral policy or practice on a protected group), direct discrimination for the most part is not. And although the Court may strictly speaking be correct in saying that the cause of action is unfair discrimination and the rest is evidence, employers will do well to establish, at the earliest juncture possible, whether the claim is one of direct or indirect discrimination. If not, employers may be in for some nasty surprises. Conclusion For the reasons explained, I do not agree with the finding of the Court in Harmse. There are simply too many questions and reservations. It is valuable because it takes substantive equality seriously and, consequently, challenges our understanding of discrimination, the EEA, and the position of members of designated groups who continue to be excluded from the workplace. However, a deliberate legislative choice was made to restrict the duty of affirmative action in the workplace (in the sense of ensuring equitable representation) to only designated employers. We also know that s 5 of the EEA requires all employers to be, to some degree, pro-active in eliminating unfair discrimination. If they are not, they will face future discrimination claims and their lack of commitment as, for example, reflected by the composition of its workforce, will count against those employers. However, as far as non-designated employers are concerned and in the absence of legislative amendment, that wheel has to turn. In the final analysis, it is not the job of the Labour Court to invent such a legal duty, much less an individual right to affirmative action where it is neither supported by the structure of discrimination law, the Constitution, nor by the EEA itself. Christoph Garbers is a Senior Lecturer in the Faculty of Law at the University of Stellenbosch. Page 100