the working classes
SERJEANT AT THE BAR
One of the key concerns of legal study is to analyse judges’ decisions to see how they are influenced by unarticulated assumptions and prejudices. There is no need to do that with Judge Nigel Willis’s recent decision in the case of Woolworths v Whitehead. His assumptions are proudly announced at the start of the judgment.
Judge Willis’s vision is a free market one in which the drive for equality conflicts with the promotion of economic rationality and prosperity. Protection for pregnant women is an equality issue and, therefore, he reasons we must ask whether we can afford it. If not, discrimination against pregnant women will be fair. He appears to be ignorant of studies that show anti-discrimination legislation can promote economic efficiency by encouraging higher levels of participation by females in the labour market.
The judge’s economic views allow him to hail himself as the self-proclaimed saviour of the working classes. His judgment will, in his view, only hurt an “elite” (i.e. professional women), while the “poor” will benefit because employers will be able to create more jobs once they are freed from the restraint of having to accommodate female managers who insist on having children. Judge Willis is blissfully unaware that his rationale that discrimination can be justified on economic grounds will undermine the security of employment of all employees. Not something that much concerns “elite” judges who have security of tenure until the age of 70.
The judgment is patronising and pretentious. He describes a sentence in the submissions of the Women’s Legal Centre Trust stressing the fundamental social importance of pregnancy as a “gem”. After this cheap shot at a quite unexceptional statement, the judge follows up with a pearl of his own. He expresses the hope that his judgment will “make it clear that the court [that is, the learned judge] does not imagine that it occupies a plane [sic] of etiolated sanctity”. (In my dictionary “etiolate” has two meanings – to make (a plant) pale by excluding light and to give a sickly hue to (a person).) The judge appears to be saying that the court is not an ivory tower. He is so impressed with his wit (and vocabulary) that he ends the sentence with an exclamation mark – the literary equivalent of laughing at your own joke. The judge would have a better chance of making things clear if he could bring himself to use language that people understand.
Judge Willis’s views on the economy pale (etiolate?) in comparison to his views on maternity. Beverly Whitehead proposed that she could perform some of her duties from home in the first few weeks after the birth – a proposal that the experienced Judge Johan Conradie found practical. Judge Willis rejects the proposal because this should be a “special time” for child and mother.
This rejection of Whitehead’s proposal shows Judge Willis’s confusion. He conveniently does not apply the freedom of choice that underlies his economic views to gender relations. The courts could promote the special nature of mothering by making rulings that will allow employees at all levels to take maternity leave safe in the knowledge that the courts will punish any act of discrimination by their employers. But why should the judge let something so mundane get in the way of his chance to philosophise?
In the judgment he refers to an article written by Constitutional Court Judge Kate O’Regan concerning the limits of the effectiveness of anti-discrimination legislation. The article makes the obvious point that legislation alone cannot reverse patterns of discrimination in a society such as South Africa. Judge Willis disingenuously uses this observation to support a decision that, if followed by other judges, would destroy the potential of legislation promoting equality to contribute to social transformation. One of the arguments made in articles such as Judge O’Regan’s is that social attitudes, particularly those held by people in powerful positions, are a major reason for perpetuating discrimination. Judge Willis’s judgment is conclusive proof of the truth of that observation.
In conclusion, the Willis judgment must be seen in its context. Although it is a Labour Appeal Court decision, it does not create any binding precedent because the other judges on the court did not concur with its reasoning.
The case throws an interesting light on the challenge of transforming the judiciary. Judge Conradie, who has been a judge since the 1980s and is one of the country’s most experienced labour judges, found that Woolworths had discriminated against Whitehead. Judge Willis and Judge President Ray Zondo (both post-1994 appointees) found for the employer. The Judge President decided the case on a different basis and did not endorse Judge Willis’s reasoning. Hopefully, other judges will not endorse its garbled philosophy and employers will not seize on it as an excuse to roll the country back into the dark ages.