Saras Jagwanth
It is difficult to understand or justify the decision of the Labour Appeal Court in the Beverly Whitehead case.
It is even more difficult to understand in the light of recent legislative developments aimed at eradicating unfair discrimination, including the Labour Relations Act, the Employment Equity Act, the Promotion of Equality and Prevention of Unfair Discrimination Act. The decision is rendered utterly incomprehensible in the light of the provisions of the Constitution, particularly its equality guarantee in Section 9, and the recent jurisprudence of the Constitutional Court, which have interpreted and given meaning to the right to equality.
The court states that for a finding of discrimination there needs to be a causal connection between the applicant’s pregnancy and the decision not to employ her on a permanent basis. The indeterminacy and shortcomings of this test are clear from the fact that the majority of judges was divided on whether such causal connection existed.
Judge Raymond Zondo held that there was no such causal connection, while Judge Nigel Willis found that it was impossible to determine this issue with clarity. He acknowledged that it would be impossible to determine what would have happened had Whitehead not been pregnant.
Motive or intention to discriminate is not a relevant factor in finding if there has been discrimination for two reasons. Firstly, direct evidence of intention to discriminate is very difficult to establish because it is often denied or is subconscious. This is why the Constitutional Court held that there is an automatic presumption of discrimination if the differentiation is based on one of the listed grounds in the Constitution, including sex, gender or pregnancy.
Secondly, it is crucial that the focus be on the impact and consequences of the conduct on the complainant, rather than the state of mind of the respondent. This promotes the remedial and restitutionary purpose of an equality guarantee, which has as its primary aim the protection of groups which suffer social, political and legal disadvantage in our society. In the light of our history it is only logical that equality guarantees are interpreted in this fashion.
It is surprising that Judge Willis did not take advantage of the Constitutional Court’s extensive equality jurisprudence in deciding whether the discrimination in question was unfair. Even more surprising is the almost total lack of reference to the provisions of the Constitution, the primacy of the right to equality accorded by it and the importance of interpreting the Labour Relations Act in its light. Judge Willis instead prefers to defer to our ”well-developed jurisprudence in the field of tax law” and, as a result, his analysis of whether the discrimination is fair focused almost exclusively on the commercial considerations of the employer.
He found that because fairness was an elastic concept, the evaluation had to be a multi- dimensional one, balancing the company’s need for continuity in the position for an uninterrupted period and the right of the applicant to equal treatment. However, in a singularly uni- dimensional analysis, the court made virtually no reference to the impact and harm imposed on the applicant in particular, and women in general, resulting from the discriminatory practice.
It is now trite law that an unfairness analysis must take into account factors such as the severity of the impact of the discrimination on the complainant and whether the group to which he or she belongs has suffered from past patterns of discrimination. None of these factors appeared to be considered by Judge Willis.
Basic and well-known arguments about discrimination based on pregnancy and its harmful effects on women as a group, the disproportionate share of childcare costs and responsibilities women bear, and their resultant inability to compete equally in the labour market were unfortunately not even superficially traversed. By highlighting the harm which would ensue from ”economically irrational” considerations such as prospective employee’s pregnancy, the message is that women must continue to bear the costs of childbearing. The concern expressed in the judgment is rather how to prevent employers from being unnecessarily burdened with its share of this responsibility.
The conclusion? Discrimination, if it in fact existed, was not unfair because ”profitability is a relevant consideration in the unfairness determination”. From the judgment of the court, this factor appears to be the prime, if not sole, consideration. This clearly flies in the face of well- established anti-discrimination law, both here and internationally.
Judge Willis concludes his judgment by pointing out the importance of motherhood in our society and that we should ”not cultivate the idea that it is secondary to the greater glories of job satisfaction”. Why should women have to choose between these two equally important pursuits simply because they are women? And what is the effect of only one of them having economic value? In an anti-discrimination analysis, it would have been far more appropriate for the learned judge to have considered the fact that the women’s responsibility for childcare and the low value placed on it is one of the greatest causes of gender inequality in our society, preventing women from competing equally in the workplace. This reality is what legislative prohibitions on sex, gender and pregnancy discrimination seek to address. Far from his finding that ”fairness refracts when beamed through the prism of reality”, a contextual, substantive and constitutionally based approach may have gone some way to help eradicate the gendered reality of the lives of women.
Saras Jagwanth is a senior lecturer in the Department of Public Law, University of Cape Town
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