Employment Discrimination Law into the Future
Authors Christoph Garbers, Peter le Roux
Affiliations: Associate Professor, Faculty of Law, Stellenbosch University; Executive consultant, ENSafrica
Source: Stellenbosch Law Review, Volume 29 Issue 2, 2018, p. 237 – 269
Important amendments to the Employment Equity Act 55 of 1998 ("EEA") were introduced in 2014, notably conferring jurisdiction on the Commission for Conciliation, Mediation and Arbitration in employment discrimination cases, inserting the phrase ‘arbitrary ground’ in section 6(1) of the EEA, explicitly providing for (and proscribing) unfair discrimination in terms and conditions of employment and also including a brand new onus provision in section 11. In this contribution, the impact of these amendments on our conceptual understanding of employment discrimination law is considered in the context of: First, world-wide trends in the development of employment discrimination law and the South African adoption of employment discrimination law in line with those trends; secondly, the correct approach to interpretation of the EEA in light of ILO Convention 111 and the Constitution,1996; thirdly, the judicial development of principles applicable to employment discrimination over the past 25 years, which precedent provides a lot of certainty about the conceptual foundations of our employment discrimination law; and, fourthly, the initial academic views, experiences and judicial approaches after the amendments came into effect. Ultimately, the authors argue that these amendments do not signify, nor do they require, any significant departure from the pre-amendment conceptual approach to employment discrimination established through precedent over the past 25 years.