Henn v SA Technical (Pty) Ltd (2006) 27 ILJ 2617 (LC)
There are different degrees of discrimination to which people within the designated groups were subjected, justifying different treatment between groups within the designated groups. It is not unfair discrimination to implement an affirmative action policy.
An applicant for a job, a white female, was not successful in her application because of employment equity demographics at the company. The company conceded it had discriminated against her on the basis of her race, but argued that it was obliged to apply affirmative action measures and therefore had not unfairly discriminated against her. Her main complaint was that there had been no disclosure that the company was only targeting black males for the vacant positions. She argued that it was unlawful to discriminate against her as she also fell into the designated groups.
The Labour Court found that as the company had conceded that there had been discrimination, it bore the onus of establishing that the discrimination was fair. The principle that there are different degrees of discrimination to which people within the designated groups were subjected has been acknowledged in the employment context.
The Court was satisfied that the company's conduct was not contrary to its policy. It was justified in giving preference to African females who were suitably qualified, even if they were obtained outside its workforce. Although the company had never disclosed that it was initially targeting black males and then black females, this did not make the appointment of black females unfair or unjustified.
The Court therefore found that the company was entitled to discriminate on the basis of race as it was taking affirmative action as provided for in s 6(2)(a) of the EEA.
Extract from the judgment:
[Para 28] It cannot be disputed that the degrees of past discrimination were not the same. In the result, there are different degrees within the designated groups. Both the applicant and the African women that were appointed are from the designated groups. The question then arises whether the employer can legitimately classify members of the designated groups in relation to their relative disadvantages as against each other.
[Para 38] The applicant's submission is that she was not competing with any person in the position she applied for... It was therefore submitted that hers was not a question of an African woman being favoured over her as a result of affirmative action. She argued that there was no person inside suitable except her and, therefore, she should have been preferred over an outsider. There are merits in this argument, but the argument cannot stand as I will show.
[Para 39] The equitable representation of blacks is an integral part of the respondent's policy. The number of African females employed by the respondent does not advance the black population. In order to ensure equitable representation, the respondent was entitled to recruit externally for a suitable candidate. The equitable representation is required in terms of s 15(1) of the Equity Act. It does not matter that the applicant did not compete with any person. The appointment of the applicant would have had the consequence of perpetuating the status quo, that is, the increase of white females.
[Para 44] After considering the evidence presented, I am satisfied that the respondent complied with s 6 of the Equity Act. It also complied with its own employment equity policy.
[Para 45] I have accepted that there was discrimination against the applicant... Taking into account all the circumstances of the case and weighing all the evidence, I conclude that the discrimination was not unfair.