Proving, or disproving, unfair discrimination How does an unsuccessful job applicant, who alleges that he/she was not appointed because of his/her beliefs, prove that this was the case? With difficulty, if the judgment in Brink v Legal Aid South Africa (Case no: D529/11, 18 September 2014) is anything to go by. As Judge Cele aptly put it: “the applicant will rarely, if ever, ferret out any sort of ‘smoking gun’ or affirmative evidence demonstrating discrimination by the employer. The question facing triers of facts in discrimination cases is often both sensitive and difficult to discern” (para 66). Admittedly the facts in this matter were unusual. The applicant, on his own testimony, was “an acutely unpopular and widely reviled leading dissident activist in the most politically inflamed and morally polarised domestic policy dispute in the democratic era, the AIDS treatment controversy” (para 31). In 1999 he had written a book challenging the effectiveness of anti-retroviral treatment for HIV-positive people which was said to have triggered the no less unpopular stance adopted on this issue by former President Thabo Mbeki. Ten years later he applied, as was recommended for, a position as Senior Litigator for Legal Aid South Africa (LASA) in Pietermaritzburg but was not appointed because the National Operations Executive (NOE) of LASA neither approved nor rejected the recommendation. The circumstances surrounding Mr Brink’s non-appointment were convoluted and the Labour Court judgment, other than noting the conflicting versions, does not analyse them in detail. In essence, LASA alleged that its failure to appoint Mr Brink was due to budgetary constraints whereas Mr Brink claimed that this defence was merely a cover-up to conceal the true reason for his non-appointment: his conscience, beliefs or political opinion in respect of the HIV controversy. Since these are prohibited grounds of discrimination in terms of section 6(1)of the Employment Equity Act (EEA), Mr Brink accordingly alleged that his non-appointment amounted to unfair discrimination and claimed an appropriate remedy. The court rejected Mr Brink’s claim on the grounds that, based on the evidence, the NOE had not been aware of his beliefs and therefore could not have discriminated against him for that reason. It is true that discrimination, unlike a delict (such as defamation) is not dependent on intent; it is the objective fact of discrimination, regardless of the perpetrator’s intention, that matters. However, discrimination also presupposes adverse treatment because of a prohibited ground, such as conscience or belief. If the NOE was genuinely unaware of Mr Brink’s beliefs, it follows that those beliefs could not have been the reason for his non-appointment. However, the judgment raises a number of further questions. The court found, with reference to the Constitutional Court judgment in Harksen v Lane NO 1997 (11) BCLR 1489 (CC) that its task was to “determine whether the conduct complained of constitutes discrimination and, if so, to proceed to determine whether it is unfair” (para 64). It then went on to find that this placed the burden on Mr Brink “to prove the existence of the discrimination he complained of”; if so, it will be “presumed to be unfair and the respondent has then to rebut the presumption” (para 66). Section 11) of the EEA, however, defines the burden of proving unfair discrimination as follows: “Whenever unfair discrimination is alleged in terms of this Act, the employer against whom the allegation is made must establish that it is fair.” Leaving aside the question of what precisely the word “it” refers to (bearing in mind that at this point there is no more than an allegation of unfair discrimination), the courts have pragmatically interpreted this provision as meaning that the applicant must at least allege facts which can raise an inference of unfair discrimination. If so, the respondent must disprove that inference. Nowhere, however, does section 11) require the applicant to “prove” anything, other than the overall burden of making out a case for the respondent to disprove. Mr Brink, however, was clearly required to do more than this. It is noteworthy that the court made no reference to section 11) of the EEA but based its interpretation of the burden of proof directly on its interpretation of Harksen v Lane. This approach is unusual for two reasons. First, Harksen v Lane was concerned not with conduct of an individual employer but with the interpretation of an Act of Parliament in terms of the Constitution itself, where quite different principles are involved. Secondly, the Constitutional Court has more than once ruled that, when applying a basic right (such as the right to equal treatment) which is regulated by legislation (such as the EEA), a court may not bypass that legislation and rely directly on the Constitution as if the legislation did not exist. Yet this appears to be what has happened in the present case. In fact, Mr Brink appears to have alleged facts from which an inference of unfair discrimination might be drawn: he held beliefs which meant, in his own words, that “[p]olitically, I stink” (para 36). He also alleged that LASA, based on its track record, supported a position directly contrary to his own. In terms of section 11 of the EEA this might be interpreted as placing a burden on LASA to disprove that inference. This, in turn, might have involved closer scrutiny of the claim by the NOE that he had been unaware of Mr Brink’s views. It is also true that the existing section 11 of the EEA is about to be replaced by a new section 11 of which the salient part reads as follows: “If unfair discrimination is alleged on a ground listed in section 6 (1), the employer against whom the allegation is made must prove, on a balance of probabilities, that such discrimination— (a) did not take place as alleged; or (b) is rational and not unfair, or is otherwise justifiable.” This makes it even clearer that it is not for the applicant to prove discrimination or its unfairness but for the respondent to disprove it, for the reason noted already: facts indicating the precise reasons for the respondent’s decision will seldom if ever be in the applicant’s possession. (As is well known, precisely the same applies in the case of allegations of unfair dismissal.) Regardless of the merits of the case under discussion, it is important in the interests of legal certainty for the courts to develop a consistent approach, in line with section 11 of the EEA, in dealing with claims of unfair discrimination on grounds of belief, conscience, or any of the other prohibited grounds listed in section 6(1). Failing to do so may render the protection against unfair discrimination intended by the EEA largely ineffective. Till next week.
Posted on: Sat, 18 Oct 2014 17:56:13 +0000
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