The Evolution of the concept of 'unfair discrimination' in South African Labour Law

Abstract

Introduction:This article examines the meaning and scope of the prohibition of unfair discrimination against employees contained in s 6 of the Employment Equity Act in the light of the development of the concept of 'unfair discrimination' from the early 1980s onwards. In so doing, it ipso facto delineates the content and scope of the defences available to an employer faced with a claim of this nature. Though focusing on direct discrimination, it will suggest that the same fundamental principles are applicable to indirect discrimination. Some conceptual points of departure should be noted. The prohibition of unfair discrimination by the EEA derives from the basic right to 'equal protection and benefit of the law' contained in s 9 of the Constitution and, more specifically, from the constitutional injunction that '[n]ational legislation must be enacted to prevent or prohibit unfair discrimination'.