The EEA and “reasonable accommodation” in the context of unfair

The EEA’s mandate to employers “to take steps to promote equal opportunity in the workplace by eliminating unfair discrimination in any employment policy or practice”⁷²⁹ may be interpreted to mean that the recognition of family responsibility as a listed ground of unfair discrimination gives rise to a direct duty on employers to accommodate employees with such responsibilities. Employers who do not reasonably accommodate employees with caregiving responsibilities may be found to have unfairly discriminated. Also, in a more indirect way, and because caregiving remains a gender issue and women are a designated group for purposes of affirmative action regulated in the EEA, the EEA states that steps must be taken to “reasonably accommodate” women through a modification or adjustment to a job or working environment to promote equal opportunity and treatment in the workplace. The EEA therefore seems to recognise that in order for employees in general, and women in particular, to combine their work and family responsibilities successfully, proactive measures are necessary to balance these roles.⁷³⁰

Precedent discussed below arguably shows that the idea of reasonable accommodation is part and parcel of the general duty to eliminate unfair discrimination (not being limited to disability discrimination).

727 254; Fredman “Facing the Future: Substantive Equality Under the Spotlight” in Equality in the Workplace Reflections from South Africa and Beyond 53-54.

728 Albertyn (2007) SAJHR 264; Fredman “Facing the Future: Substantive Equality Under the Spotlight” in Equality in the Workplace Reflections from South Africa and Beyond 29.

729 S 5 of the EEA.

730 Cohen & Dancaster “Flexible Working Arrangements for Employees with Family Responsibilities – The Failings of the Employment Equity Act” in Equality in the Workplace:

Reflections from South Africa and Beyond 211.

4 1 Judicial guidance on reasonable accommodation

An increasingly important aspect of discrimination law is the requirement of reasonable accommodation. This concept is generally associated with disability discrimination–

also in South Africa.⁷³¹ In the constitutional context, the duty of reasonable accommodation has been primarily developed in the context of religion in MEC for Education, Kwazulu-Natal, and others v Pillay⁷³².⁷³³After stating that “[t]he concept of reasonable accommodation is not new to our law”⁷³⁴ and part and parcel of the Constitution, the EEA and PEPUDA⁷³⁵, the court explained the content of the principle of reasonable accommodation as follows:

“At its core is the notion that sometimes the community, whether it is the State, an employer or a school, must take positive measures and possibly incur additional hardship or expense in order to allow all people to participate and enjoy all their rights equally. It ensures that we do not relegate people to the margins of society because they do not or cannot conform to certain social norms.”⁷³⁶

And further:

“[E]xclusion is inflicted on all those who are excluded by rules that fail to accommodate those who depart from the norm. Our society which values dignity, equality and freedom must therefore require people to act positively to accommodate diversity. Those steps

731 See item 6 of the Code of Good Practice on the Employment of People with Disabilities GN 1345 in GG 23702 of 19-08-2002 as corrected by GN 1064 in GG 23718 of19-08-2002. S Fredman Comparative study of anti-discrimination and equality laws of the US, Canada, South Africa and India (2012) 55.

732 2008 1 SA 474 (CC).

733 Fredman Comparative study of anti-discrimination and equality laws of the US, Canada, South Africa and India (2012) 57.

734 Para 72.

735 PEPUDA recognises (in s 9) that “failing to take steps to reasonably accommodate the needs' of people on the basis of race, gender or disability will amount to unfair discrimination”.

The Act (in s 25) also places a duty on the State to “develop codes of practice . . . in order to promote equality, and develop guidelines, including codes in respect of reasonable accommodation” and permits courts to order that a group or class of persons be reasonably accommodated. Section 14(3)(i)(ii) lists the question whether the applicant has taken reasonable steps to accommodate diversity as a factor for the determination of fairness of discrimination.

736 Para 73.

might be as simple as granting and regulating an exemption from a general rule or they may require that the rules or practices be changed or even that buildings be altered or monetary loss incurred.”⁷³⁷

In respect of the scope of accommodation, the court stated that balancing the needs of the individual and those of society remains problematic and an approach which amounts to “more than mere negligible effort” is required to satisfy the duty to accommodate.⁷³⁸ This approach is more in accordance with the spirit of our constitutional project which confirms diversity.⁷³⁹ The court stated, however, that

“[r]easonable accommodation is in a sense an exercise in proportionality that will depend intimately on the facts”.⁷⁴⁰ The court also remarked that reasonable accommodation is appropriate in the workplace and that it will be particularly important in the context of allegations of indirect discrimination.⁷⁴¹

Against this background, the Labour Appeal Court further emphasised and discussed the concept of reasonable accommodation in Kievits Kroon Country Estate (Pty) Ltd v Mmoledi⁷⁴². In this case, the Labour Appeal Court had to consider the review of an arbitration award involving the fairness of dismissal (based on cultural beliefs) and remarked that our society is characterised by a diversity of cultures, traditions and beliefs which sometimes create challenges within our society, including the workplace.⁷⁴³ Reasonable accommodation of each other is required to “ensure harmony and to achieve a united society” and “accommodating one another is nothing else but ‘botho’ or ‘Ubuntu’ which is part of our heritage as a society”.⁷⁴⁴

737 Para 75.

738 Para 76.

739 Para 76.

740 Para 76.

741 Para 78. Also see Garbers & Rossouw “Women in the Workplace: On ‘unfair discrimination’, ‘affirmative action’, ‘reasonable accommodation’ and ‘special measures’”

(2015) ISLSSL Labour Law World Congress 8.

742 2012 33 ILJ 2812 (LAC).

743 Para 26.

744 Para 26.

The Labour Court dealt with the issue of accommodation in the context of discrimination on at least three occasions.⁷⁴⁵ In Dlamini v Green Four Security⁷⁴⁶ the court found that a rule within a workplace was an inherent requirement of the job and the employees were unable to prove that their dismissal was a result of their religious beliefs. The court accepted that even if an inherent requirement of a job is found to exist, the dismissal might still be discriminatory if “the impact is not ameliorated by a reasonable accommodation or modification of the rule, or an exemption from it”.⁷⁴⁷ More to the point, in operative Workers Association v Petroleum Oil & Gas Co-operative of SA⁷⁴⁸ the court noted that South African courts apply a substantive approach to equality to redress imbalances and protect vulnerable groups.⁷⁴⁹ The court further noted that the international community acknowledged the fact that workers with family responsibilities constituted a vulnerable group and that special measures must apply to these workers to adjust for the hardships of such responsibilities in order to establish equality amongst the workforce.⁷⁵⁰ The court also stated that the responsibility for addressing the special needs of workers with family responsibilities does not only fall on the state but also on employers.⁷⁵¹

The Labour Court in Standard Bank of South Africa v CCMA⁷⁵² discussed the content of an employer’s duty to reasonably accommodate, where needed, an employee or job applicant with a disability and held that the “[r]easonable accommodation of the employee and unjustified hardship to the employer operate as countervailing forces to balance the respective rights of the parties. If the employer cannot reasonably accommodate the disabled employee without unjustifiable hardship, the employer may dismiss the employee.”⁷⁵³ Unjustifiable hardship offers

745 Also see Garbers & Rossouw “Women in the Workplace: On ‘unfair discrimination’,

‘affirmative action’, ‘reasonable accommodation’ and ‘special measures’” (2015) ISLSSL Labour Law World Congress 8.

746 2006 27 ILJ 2098 (LC).

747 Para 13. Also see paras 31-32.

748 2007 28 ILJ 627 (LC).

749 Para 48.

750 Paras 36, 50.

751 Para 50.

752 2008 4 BLLR 356 (LC).

753 Para 371.

relief to an employer from the obligation to reasonably accommodate.⁷⁵⁴ The effectiveness of the accommodation and the extent to which it would seriously disrupt the operation of the business must be considered in determining whether a particular accommodation of a person with a disability, where needed, will impose unjustifiable hardship on the business of the employer.⁷⁵⁵ The employer who has to provide reasonable accommodation must find an accommodation and prove that it is reasonable.⁷⁵⁶ The employer also bears the onus of proving that reasonable accommodation is unjustifiable.⁷⁵⁷

What this brief overview shows is that “reasonable accommodation”, which is often associated with disability discrimination, is a versatile mechanism that facilitates equality.⁷⁵⁸ Applied to gender, this then means our equality law recognises – and we can expect – that in order for women to combine their work and care responsibilities successfully, proactive measures are necessary to reduce the conflict inherent in their dual roles.⁷⁵⁹ Cohen and Dancaster rightly remark that this includes measures such as leave arrangements and flexible working arrangements, which involve a “more permanent change to the working conditions of female employees”.⁷⁶⁰ The EEA, however, is silent on the actual nature and extent of accommodation required and the determination of reasonableness⁷⁶¹ and the courts have not yet been faced with the need to provide judicial interpretation of the meaning of “reasonable accommodation”

754 Para 378.

755 Cohen & Dancaster “Flexible Working Arrangements for Employees with Family Responsibilities – The Failings of the Employment Equity Act” in Equality in the Workplace:

Reflections from South Africa and Beyond 211.

756 Standard Bank of South Africa v CCMA 2008 4 BLLR 356 (LC) para 377.

757 Para 377.

758 Garbers & Rossouw “Women in the Workplace: On ‘unfair discrimination’, ‘affirmative action’, ‘reasonable accommodation’ and ‘special measures’” (2015) ISLSSL Labour Law World Congress 9.

759 Cohen & Dancaster “Flexible Working Arrangements for Employees with Family Responsibilities – The Failings of the Employment Equity Act” in Equality in the Workplace:

Reflections from South Africa and Beyond 211.

760 211.

761 211.

in the context of gender and family responsibility discrimination in the workplace.⁷⁶² However, we do know from MEC for Education, Kwazulu-Natal, and others v Pillay that there is no absolute standard which may be laid down for determining reasonableness – it should be done on a case by case basis. As stated by Garbers and Rossouw, this contextual proportionality analysis requires consideration of the impact of the workplace rule on women, the importance of this rule (in other words the legitimacy of the goal the employer wants to achieve), the link between the rule and the goal (whether they are rationally related) and whether this goal may reasonably be achieved by less invasive means – including accommodation.⁷⁶³

Applying the above to the imperative to accommodate women with family responsibilities, it should be seen as discriminatory for an employer to fail to reasonably accommodate these women, including a refusal of a request for flexible working arrangements, part-time or modified work schedules, unless the employer is able to justify its refusal by means of evidence of unjustified hardship to the operation of the busisness.⁷⁶⁴ One other major challenge emerges from this insight, namely that reasonable accommodation in the current context ultimately depends for its development and enforcement on the implementation of affirmative action or discrimination litigation.⁷⁶⁵

4 2 Developing and enforcing “reasonable accommodation” through affirmative action and discrimination litigation

4 2 1 Affirmative action

The provisions of the EEA relating to affirmative action appears to have powerful potential to improve women’s position in the workplace by means of access to

762 Garbers & Rossouw “Women in the Workplace: On ‘unfair discrimination’, ‘affirmative action’, ‘reasonable accommodation’ and ‘special measures’” (2015) ISLSSL Labour Law World Congress 9.

763 10.

764 Cohen & Dancaster “Flexible Working Arrangements for Employees with Family Responsibilities – The Failings of the Employment Equity Act” in Equality in the Workplace:

Reflections from South Africa and Beyond 212.

765 Garbers & Rossouw “Women in the Workplace: On ‘unfair discrimination’, ‘affirmative action’, ‘reasonable accommodation’ and ‘special measures’” (2015) ISLSSL Labour Law World Congress 10.

employment (preferential promotion or appointment) as well as the fact that affirmative action expressly includes the identification of barriers to employment and reasonable accommodation in employment.⁷⁶⁶ In order to achieve these objectives, the EEA requires certain affirmative action measures to be taken, including guidelines for the formation and functioning of a consultation process⁷⁶⁷, the compilation of employment equity plans⁷⁶⁸ and annual progress reporting to the Department of Labour⁷⁶⁹.

However, there are practical and legal deficiencies that may continue to hinder reasonable accommodation to operate successfully as part of affirmative action.⁷⁷⁰ Firstly, affirmative action over the past two decades aimed more at racial representation (rather than gender) and less at a remedial cause.⁷⁷¹ Race is more about the quantitative, namely access to employment and numbers, while gender concerns the qualitative, namely the implementation of the full array of affirmative action measures – including removal of barriers and accommodation during employment.⁷⁷² In this sense, affirmative action does not truly address the challenges women face in the workplace, especially if you take into account that security and flexibility is necessary to improve the number of women and their position in employment over time. It is interesting and ironic that the Convention on Discrimination (Employment and Occupation), prohibits race discrimination but does not immediately identify race as a ground that might merit “special measures”, while it does so in

766 S 15 of the EEA; O Dupper & C Garbers “Affirmative action” in Essential Employment Discrimination Law 272 and Garbers & Rossouw “Women in the Workplace: On ‘unfair discrimination’, ‘affirmative action’, ‘reasonable accommodation’ and ‘special measures’”

(2015) ISLSSL Labour Law World Congress 10.

767 S 16.

768 S 20.

769 S 21.

770 Garbers & Rossouw “Women in the Workplace: On ‘unfair discrimination’, ‘affirmative action’, ‘reasonable accommodation’ and ‘special measures’” (2015) ISLSSL Labour Law World Congress 10.

771 GS Bosch “Restitution of Discrimination? Lessons on affirmative action from South African Employment Law” (2007) 4 Web JCLI 14; O Dupper “The Beneficiaries of Affirmative Action”

in O Dupper O & C Garbers (eds) Equality in the Workplace Reflections from South Africa and Beyond 302.

772 MS Mekwa The Implementation of Employment Equity in the Public Service with specific reference to the Department of Justice and Constitutional Development MPA UNISA (2012) 43.

respect of sex and family responsibilities.⁷⁷³ In other words, although race based and sex based affirmative action may overlap, they ultimately each have their own demands.⁷⁷⁴ Secondly, the obligation to implement affirmative action only applies to designated employers.⁷⁷⁵ It needs to be kept in mind that section 5 of the EEA applies to all employers and arguabaly includes the obligation of reasonable accommodation as a general principle of anti-discrimination law.⁷⁷⁶ Thirdly, affirmative action is administratively enforced.⁷⁷⁷ This means a failure to implement affirmative action (for example, the failure of a designated employer to reasonably accommodate women as a designated group) cannot be brought to court as an unfair discrimination claim.⁷⁷⁸ The current administrative approach to the enforcement of affirmative action is inadequate⁷⁷⁹ and makes affirmative action less effective.⁷⁸⁰ Although the EEA provides for monitoring,⁷⁸¹ undertakings to comply and compliance orders,⁷⁸² a review of the employer’s progress in implementing affirmative action,⁷⁸³ the possible imposition of substantial fines by the Labour Court⁷⁸⁴ and loss of State contracts,⁷⁸⁵ section 42(4) of the Act states that employers may raise any reasonable argument to

773 See arts 1(a) and 2.

774 Garbers & Rossouw “Women in the Workplace: On ‘unfair discrimination’, ‘affirmative action’, ‘reasonable accommodation’ and ‘special measures’” (2015) ISLSSL Labour Law World Congress 11.

775 See the text to n 619 above and Dupper & Garbers “Affirmative action” in Essential Employment Discrimination Law 271.

776See text to part 4 above.

777 See ch V of the EEA, Garbers & Rossouw “Women in the Workplace: On ‘unfair discrimination’, ‘affirmative action’, ‘reasonable accommodation’ and ‘special measures’”

(2015) ISLSSL Labour Law World Congress 11 and Du Toit et al Labour Relations Law: A Comprehensive Guide 760.

778 Dudley v City of Cape Town (2004) 25 ILJ 305 (LC) and on appeal [2008] 12 BLLR 1155 (LAC).

779 Bezuidenhout et al Tracking Progress on the implementation and impact of the Employment Equity Act since its inception (2008) 66.

780 Bosch “Restitution of Discrimination? Lessons on affirmative action from South African Employment Law” (2007) 4 Web JCLI 14.

781 S 34 of the EEA.

782 S 35-38.

783 S 42-45.

784 S 50(1)(g) read with Schedule 1.

785 S 53.

justify their failure to comply with its affirmative action obligations. ⁷⁸⁶ This places the focus on the capacity of the Department of Labour to monitor affirmative action in a qualitative and substantive sense instead of focusing on quantity and procedure.⁷⁸⁷ Any assessment of compliance by an employer will require appreciation of its individualised substantive (business) realities and the quality of its decision-making in that context. ⁷⁸⁸ While the EEA thus provides for easy formal policing (for example to monitor the submission of annual reports), proper substantive policing, namely policing the quality of affirmative action, is what is required.⁷⁸⁹

4 2 2 Discrimination litigation

As discussed above,⁷⁹⁰ discrimination litigation in South Africa – also in the context of gender and family responsibility – has not been effective in redressing the workplace inequalities associated with sex, gender and family responsibilities. However, the EEA amendments address some of the reservations expressed above about the effectiveness of discrimination litigation to (also) improve the plight of women in the workplace and have created at least the potential that protection against unfair discrimination may prove much more of a factor in the protection and advancement of women in employment in future.