In recent amendments to the Employment Equity Act (The Act), the scope of application of unfair workplace discrimination was widened to include the concept of discrimination on an arbitrary ground. Section 6 of the Act provides that 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 (the “listed grounds”) or any other arbitrary ground.

Section 11 of the Act provides that if the alleged unfair discrimination is based on a listed ground, the employer against whom the allegation is made must prove that the discrimination did not occur as alleged or that the discrimination is rational, justifiable, and not unfair. However, if the discrimination is alleged on an arbitrary ground, the complainant bears the burden of proof that the conduct complained of is not rational, amounts to discrimination and is unfair.

Thus, discrimination based on a listed ground is treated differently than discrimination based on arbitrary grounds. Therefore, it is important to understand the correct meaning of the word “arbitrary” in the context of workplace discrimination.

The ordinary meaning of “arbitrary” is defined as “based on random choice or personal whim, rather than any reason or system”. If we were to apply this definition to the word, the result is that an employee could allege unfair discrimination on an unending list of possible grounds.

In the case of Prinsloo v Van Der Linde and Another 1997 (6) BCLR 759 (CC), the court held:
“Given the history of this country, we are of the view that discrimination has acquired a particular pejorative meaning relating to the unequal treatment of people based on attributes and characteristics attached to them…”

In the case of Harksen v Lane NO 1997 1997 BCLR 1489 (CC), the court held:
“There will be discrimination on an unspecified (arbitrary) ground if it 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 completely serious manner.”

“What the specified grounds have in common is that they have been used or misused in the past both in South Africa and elsewhere to categorise marginalised and often oppressed persons who have had or who have been associated with these attributes or characteristics. These grounds have the potential when manipulated to demean persons in their inherent humanity and dignity…”

From the above Constitutional Court judgements, it becomes clear that, for discrimination to exist, whether on a listed ground or an arbitrary ground, the following factors should be considered:

  • The ground must be a characteristic or attribute attached to the individual
  • The ground must be immutable (unchanging over time or unable to be changed)
  • Society must have ostracised, categorised, marginalised, or oppressed persons who have this attribute or characteristic in the past, and
  • It must impair the individual’s human dignity in a completely serious manner.

Therefore, if the ground is not based on an immutable characteristic attached to an individual which has been used in society to oppress people, resulting in an impairment of their human dignity, then the conduct cannot amount to discrimination on either a listed or arbitrary ground.

Consideration of the above factors will result in the correct evaluation of the use of the term “arbitrary” in the Act. If, for example, an employee claims the discrimination is as a result of filing a pay dispute, or the exercising of a right contained in law or because of the employee being a shop steward, it is argued that these grounds would not give rise to a discrimination dispute.

The above approach was confirmed in Mdunjeni-Ncula v MEC, Minister of Health and another  ILJ 2393 (LAC), at 13, where the court commented:
“There has been a considerable debate in the Labour Court with regard to the phrase “on any other arbitrary ground”, in particular, whether “arbitrary grounds” in section 6(1) includes not only the prohibition of discrimination on a ground that undermines human dignity but any ground which has shown to be irrational.” Referring to Naidoo and others v Parliament of South Africa and after careful analysis of the jurisprudence generated by the Labour Court on this question, the court held:
“the crux of the test for unfair discrimination is the impairment of human dignity and adversely affecting the comparable similar manner and not the classification of the ground as listed or unlisted. The distinction between listed and unlisted grounds affects only the burden of proof differentiation on both the listed and analogous grounds.”

By comparison to Section 6(1), the Promotion of Equity and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA) also introduces a concept of analogous grounds, which are defined as:
“(b) any other ground where discrimination based on that other ground-
1) causes or perpetuates systemic disadvantages;
2) undermines human dignity; or
3) adversely affects the equal enjoyment of a person’s rights and freedoms in a serious manner that is comparable to discrimination on one of the listed grounds.”

It is therefore arguable that the phrase “on any other ground” extends beyond the genus of the listed ground set out in section 6(1) of the EEA in that the use of “other arbitrary grounds” encompasses a broader scope than the specific provisions of analogous grounds in PEPUDA. However, the above extract from Harksen, i.e. “that there will be discrimination on an unspecified ground if it is based on the 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” finds application and limits the scope.

Whatever the arbitrary ground may be, the complainant retains the burden to prove the conduct complained of is irrational, amounts to discrimination and is unfair prior to the employer being required to respond to the allegation.

Article by: Stephen Kirsten
Provincial Manager – Cape Town