Promotion of Equality & Prevention of Unfair Discrimination Bill [B57-99]

1.12 socio-economic stereotype means the product of adverse assumptions concerning persons who are disadvantaged by poverty, low employment status or lack of or low-level educational qualifications.
1.13 respondent means anybody against whom proceedings are instituted in terms of this Act;
1.14 the State includes any department of State or administration in the national, provincial or local sphere of government;
2 Application

2.1 This Act binds:

2.1.1 the State and any organ of state;
2.1.2 any natural or juristic person to the extent set out in 1.10.
3 Prohibition of unfair discrimination

3.1 The state and any organ of state may not unfairly discriminate against anyone.

3.2 A natural or juristic person may not unfairly discriminate against anyone in relation to any controlled activity.
4 Unfair discrimination

Discrimination is unfair if it:

4.1 impairs or is likely to impair the fundamental human dignity of any individual, group, class or category of person; or
4.2 perpetuates or exacerbates or is likely to perpetuate or exacerbate existing patterns of disadvantage based on or related to the prohibited grounds.
5 Determination of unfair discrimination

Whether discrimination is unfair depends on its context and all relevant circumstances and in particular:

5.1 the impact of the discrimination on the complainant;
5.2 the position of the complainant in society and whether he or she has suffered in the past from patterns of disadvantage;
5.3 the nature and extent of the discrimination;
5.4 whether it has a legitimate purpose;
5.5 the nature and importance of its purpose;
5.6 whether and to what extent it achieves its purpose;
5.7 whether and to what extent its purpose may be achieved by less intrusive means;
5.8 whether and to what extent the respondent has taken such steps as are reasonable in the circumstances to overcome disadvantage or to accommodate diversity arising from or related to one or more of the prohibited grounds; and
5.9 whether it is consistent with the applicable code of practice, if any.
6 Measures designed to redress disadvantage

6.1 Acts or omissions designed to protect or advance groups or categories of persons disadvantaged by unfair discrimination, or the members of such groups or categories of person, do not constitute unfair discrimination.

6.2 The state and organs of state must implement measures to protect and advance black people, women and people with disabilities.
6.3 Natural and juristic persons engaged in any controlled activity, must implement measures to protect and advance black people, women and people with disabilities.
7 Proof of unfair discrimination

Discrimination is presumed to be unfair unless the contrary is established.

8 Prohibition of harassment

Nobody may subject anybody else to harassment.

9 Duty to promote equality

The State, all organs of state and the constitutional institutions referred to in chapter 9 of the Constitution must, in the exercise of their powers, duties and functions, accord equal concern and respect to every individual, group or category of persons and must promote:

9.1 the spirit, purport and objects of this Act;
9.2 the full and equal enjoyment of all rights and freedoms by every individual, group and category of person;
9.3 the redress of disadvantage caused by unfair discrimination;
9.4 the elimination of patterns of disadvantage caused by unfair discrimination.
10 Codes of practice

The Ministers responsible for the controlled activities must, in consultation with the Minister, formulate and publish codes of practice in relation to the controlled activities within a reasonable time and not later than 3 February 2001.

These codes will be developed in consultation with organs of civil society.
In interpreting this Act, a court must take account of codes or guidelines that have been developed.
Women's Legal Centre & Socio-Economic Rights Project, UWC (17/11/99)

JOINT SUBMISSION

THE PROMOTION OF EQUALITY AND PREVENTION OF UNFAIR DISCRIMINATION BILL
WOMEN’S LEGAL CENTRE AND SOCIO-ECONOMIC RIGHTS PROJECT,

COMMUNITY LAW CENTRE (UWC)

17 November 1999
1.INTRODUCTION

1.1 The Promotion of Equality and Prevention of Unfair Discrimination Bill, 1999 [hereafter referred to as ‘the Bill] must properly fulfil the constitutional mandate to enact national legislation “to prevent or prohibit unfair discrimination.” (s 9(4)). It must at the very least meet the minimum requirement of section 9(4) of the Constitution to prevent or prohibit unfair discrimination by private people and corporations.

1.2 Equality legislation can play a key role in promoting the transformation of our society by providing concrete mechanisms for challenging unfair discrimination on one or more grounds in terms of section 9(3) of the Constitution. The Constitutional Court has said that these grounds have “the potential, when manipulated, to demean persons in their inherent humanity and dignity.” According to the Court, the equality clause in the Constitution “seeks to prevent the unequal treatment of people based on such criteria which may, amongst other things, result in the construction of patterns of disadvantage such as has occurred only too visibly in our history.” (Harksen v Lane NO and others 1997 (11) BCLR 1489 (CC), para. 49). We accordingly fully support the objectives of this legislation.
1.3 The Bill must fulfil four main criteria. It must:

· be legally coherent and comply with the Constitution;

· workable; and

· provide accessible remedies, especially for disadvantaged groups, to obtain redress against unfair discrimination.

· promote equality and transformation of our society
1.4 We are concerned that the Bill in its present form contains a number of serious flaws. The effectiveness of the legislation will be undermined by its undue complexity, contradiction and vagueness. The Bill may be open to constitutional challenge because of these flaws.

1.5 In this submission, we set out some of the main problems with the Bill. We also intend providing the Portfolio Committee with a framework document which suggests an alternative scheme for dealing with the main elements of the Bill: the definition of discrimination, the prohibition of unfair discrimination, defences and burden of proof. These elements constitute the “backbone” of the legislation, and should meet the above four criteria. Our primary focus is to suggest a coherent structure and scheme for the Bill which fulfils its constitutional objectives.

We set out below some of the key problems with the Bill in its present form:
2. DEFINITIONS OF DISCRIMINATION

2.1 The Bill contains many overlapping definitions of discrimination, each using different concepts. These include:

‘disability discrimination’ - s1(vi);

‘pregnancy discrimination’ - s 1 (xiv);

‘unfair discrimination’ - s 1(xxvi);

‘racial discrimination’ - s 7(1);

‘gender discrimination’ - s 10;

unfair discrimination in relation to employment - s 13(ii).

This host of different definitions is problematic for the following reasons:
2.2 It will be confusing for courts or other forums to decide what test to apply in a particular case. For example, if a person is being discriminated against as a disabled women, should the courts apply the definition of disability discrimination, gender discrimination or the general definition of unfair discrimination?
2.3 The division of forms of discrimination into different categories has regressive implications as it does not take into account the intersectionality of grounds. The Constitutional Court has said that there is often a complex relationship between grounds of discrimination. It went on to warn that the “temptation to force them into neatly self-contained categories should be resisted.” (Harksen v Lane NO and others at para. 49). By attempting to give separate definitions for race discrimination, gender discrimination, disability discrimination, pregnancy discrimination etc., the Bill attempts to divide discrimination into different categories. The likely effect of this will be that complainants will have to elect which category of discrimination they wish to rely on. This will negate the reality that the discrimination experienced is often the result of a combination of a number of grounds e.g. race, sex, disability, socio-economic status etc.
2.4 South Africa is not obliged to follow the exact words of the international instruments cited in order to incorporate their provisions in domestic law. International treaty provisions can be ‘transformed’ in domestic law. This means that the treaty provisions are translated into terms and concepts that are consistent with those of the domestic legal order. Provided the domestic legislation gives proper effect to the relevant treaty obligations, it is not necessary to take over the precise definition of ‘racial discrimination’ in the Convention on the Elimination of All Forms of Racial Discrimination (CERD) and the definition of ‘discrimination against women’ in article 1 of the Convention on the Elimination of all forms of Discrimination against Women (CEDAW). If the Equality Bill accords with the constitutional provisions and jurisprudence relating to section 9 of the Bill of Rights, we submit that it will give proper effect to the obligations arising from CERD, CEDAW and other human rights treaties South Africa has ratified (e.g. articles 2(1) and 26 of the International Covenant on Civil and Political Rights, 1966)
We accordingly propose that the current definitions of various forms of discrimination should be replaced a single definition of ‘discrimination’ that will apply to all grounds and sectors.

3. THE DEFINITION OF ‘UNFAIR DISCRIMINATION’ IN THE BILL

3.1 The Bill purports to define ‘unfair discrimination’ (s 1(xxvi)). We believe that it would be a mistake for the Bill to attempt a closed definition of unfair discrimination. This will limit the development of our equality jurisprudence at an early stage. It also fails to reflect the fact that the determination of the unfairness of the discrimination complained of is essentially a contextual enquiry which focuses on the impact of the discrimination complained of on the complainant. It is also possible to give some guidance to the equality courts, (and other fora that interpret this legislation) on how to approach the interpretation of unfair discrimination in the sections of the Bill dealing with the Preamble, the ‘Interpretation of the Act’ (s 3) and the ‘Guiding Principles’ (s 4).
3.2 Section 6(1) provides that no one may unfairly discriminate “directly or indirectly”. Paragraph (i) of the definition of “unfair discrimination” again defines it as an act or omission which has “the direct or indirect effect” of causing disadvantage to people. This repetition is confusing. It probably means that no one may directly or indirectly do or omit to do anything which has the direct or indirect effect of causing disadvantage to people. The link between the conduct and the disadvantage becomes impossibly remote.
3.3 In any event, the Bill’s definition of ‘unfair discrimination’ is circular: “unfair discrimination means...unjustly or unfairly causing disadvantage to....”

It does not provide guidance on when the causing of disadvantage is to be regarded as unjust or unfair. The introduction of the concept of injustice in this context and its relation to unfairness is also bound to cause confusion. Care should be taken to avoid the use of many different concepts as this will lead to difficulties in the interpretation of the Act. The qualifiers, ‘unjustly or unfairly’ in this context are vague and will make proof of unfair discrimination all but impossible.

3.4 Paragraph (iii) of the definition of “unfair discrimination” includes “racial and sexual harassment” within its ambit. These two concepts are separately defined but there is also a further definition of “harassment”. It is not clear whether “racial harassment” and “sexual harassment” are forms of “harassment” which have to comply with the definition of the latter concept.
3.5. There is also a concern that paragraph (iv) may be too broad, and thus likely to be ineffective.
3.6. Paragraph (b) of the proviso excludes any discrimination “on the basis of an inherent requirement of a job or a situation”. This exclusion will at worst deprive the whole definition of any coherent and practical meaning or at best make it all but impossible to apply. What does it mean to say that discrimination does not constitute unfair discrimination if it is done “on the basis of an inherent requirement of ... a situation”? What is an “inherent requirement”? What is a “situation”? The relationship between this specific defence and the general defence to a claim of unfair discrimination in section 43 is also unclear.
4. DEFINITION OF ‘PROHIBITED GROUNDS’

4.1 Paragraph (i) of the definition of unfair discrimination is based on the concept of “prohibited grounds”. But the definition of ‘prohibited grounds’ (s 1 (xvii) is open ended so that it is impossible to determine what those grounds are. They are said to “include” the specified grounds “or any other recognised ground.” One is accordingly told that the prohibited grounds are not limited to those specified, without any indication what the further prohibited grounds are or how one should determine them. It is not clear how a ground comes to be “recognised” - by society, the Constitutional Court, the new Equality Courts created by the Bill?

5. DEFENCES AND BURDEN OF PROOF

5.1 Section 43(1) provides that it is a defence to a claim of unfair discrimination “that the act or omission is reasonable and justifiable in the circumstances”. How does one reconcile that with paragraph (i) of the definition of unfair discrimination which requires that disadvantage must be caused “unjustly or unfairly”. When is something “unjust and unfair” but nonetheless “reasonable and justifiable”?

5.2 The relationship between “reasonable accommodation” in the definition section and accommodation short of “unjustifiable hardship” in section 43(3) must also be clarified.
5.3 These provisions must be read with section 45 which purports to deal with the burden of proof when someone is accused of unfair discrimination. It creates the following problems:
5.3.1 Although the section purports to deal merely with the burden of proof, its impact may be more drastic. It says that, if a prima facie case of unfair discrimination is made out, the respondent must prove one of two things, either that the discrimination is not based on a prohibited ground or that it is reasonable and justifiable. The language suggests that these are the only defences open to the respondent. But what if the respondent’s defence is that he or she did not discriminate in the first place? Who bears the burden of proof on that issue?
5.3.2 One of the things that the respondent must prove, is that the discrimination is not based on one or more of the prohibited grounds. But under the definition of unfair discrimination, only some forms of unfair discrimination are defined as discrimination on the prohibited grounds. For example, sub-paragraphs (i), (ii), (iii), and (iv) of the definition of ‘unfair discrimination’ do not refer to the prohibited grounds. Does it mean that it is also a defence to the other forms of unfair discrimination if it is proved that it was not done on any of the prohibited grounds?
5.3.3 Similarly the relationship between many of the specific prohibitions contained in Chapter 2 of the Bill and the general defence provisions in Chapter 3 is not clear (see para 7.2.5 below).
5.4 Using the concepts of “reasonableness and justifiability” as the basis for the general defence in the Bill should also be re-examined. These concepts are relevant to an enquiry under s 36 of the Bill of Rights concerning the justifiability of limiting a right in the Bill of Rights in terms of a law of general application. The introduction of the concept of ‘reasonable and justifiable’ in the Bill in fact introduces a three-stage burden of proof requirement. In other words, once the applicant makes out a prima facie case of unfair discrimination in terms of the Act, the respondent must in fact prove three things:

(a) that the discrimination is not based on one or more of the prohibited grounds;

(b) if is, that the discrimination is not unfair;

(c) if it is unfair, that the discrimination is reasonable and justifiable in terms of section 46.

The Bill in its current form does not follow through the logic of its own approach. It currently omits step (b) from its burden of proof provision i.e the unfairness enquiry. A three-stage enquiry in a Bill of this nature will potentially make issues of proof and interpretation in a discrimination case very complicated. We are seeking advice on this aspect and will include proposals in our draft scheme.
6. SPECIFIC FORMS OF DISCRIMINATION

6.1 The remainder of chapter 2 is devoted to other specific forms of discrimination. Those provisions are equally vulnerable to attack. Their main weaknesses arise from the following features:

6.1.1 Each part contains its own definition of prohibited forms of discrimination. Those definitions are apparently self-contained and unrelated to the definition of “unfair discrimination”. But it creates a great deal of confusion to have a general definition of unfair discrimination on the one hand and separate free-standing definitions of a variety of other forms of discrimination on the other.
6.1. 2 It would seems as though the provisions of chapter 3 (defences and burden of proof) are meant to apply to all forms of discrimination. Their language however restricts their application to cases of “unfair discrimination”. It follows that they apparently have no application when the charge is not one of “unfair discrimination” but of one of the more specific forms of discrimination.
6.2 Each prohibition of a specific form of discrimination has its own problems. For example, the following are some of the more glaring anomalies in the prohibition of racism and racial discrimination in sections 7 and 8:
6.2.1. Section 8(b) is very difficult to understand. It is in any event so complicated as to be incapable of meaningful application. The concluding phrase opens with the words “such as”. What is meant by this? It is suggested that the conduct described in this section is prohibited only if it occurs in certain spheres “such as” in sport, the recognised professions and health services. But how does one determine the spheres in which the prohibition operates?
6.2.2 Section 8(c) is also vague and will be very difficult to enforce.
6.2.3 The prohibition of racism and racial discrimination is wide enough to encompass a prohibition on affirmative action based on racial grounds. The exemption of affirmative action in paragraph (aa) of the proviso to the definition of “unfair discrimination” (s 1(xxvi)(aa)) does not apply because the prohibition relates to “racial discrimination” and “racism” and not to “unfair discrimination”.
6.2.4 The provisions of chapter 3 (defences) also do not apply to this prohibition because they are confined to “unfair discrimination” and do not apply to “racial discrimination” or “racism”.
6.3 There is a great deal of confusion and contradiction arising from the vast areas of overlap between the general prohibition in section 6(1) on the one hand, and the specific prohibitions in the remainder of chapter 2 on the other, and between the various specific prohibitions. Those areas of overlap will make it a nightmare whenever an attempt is made to enforce any of the prohibitions whether of the general or specific variety.
6.4 All of the aforegoing problems are yet further compounded by sections 3 and 4 which require one to subject the interpretation of the Bill to the vague and sometimes contradictory provisions of those sections.
7. SPECIFIC SECTORS IN THE BILL

7.1 The Bill currently prohibits unfair discrimination within a range of sectors. Adopting this approach to dealing with forms of unfair discrimination within various sectors clearly has certain advantages. Firstly, it provides greater clarity and certainty as to exactly what constitutes discrimination within particular sectors. This is important both for interpretative purposes in courts as well as for educational purposes. Many instances of discrimination within particular sectors in South Africa are not self-evident and require clear identification. A sectoral approach also takes account of the differences and nuances in the way discrimination occurs within particular sectors. However, the way in which the particular sectors are drafted is essential to these purposes being achieved.

7.2 We contend that unfair discrimination within each of these sectors do not in fact achieve any of the aforementioned purposes. The main reasons for this are:
7.2.1 The initial purpose of adopting a sectoral approach was to take account of the differences and nuances in the way discrimination occurs within particular sectors. However, the way in which the sectors are currently drafted do not take account of these differences and nuances. Many of the instances of discrimination in the various sectors can be adequately addressed through a general prohibition on unfair discrimination applicable to all sectors. The selection of the various forms of discrimination included or omitted in the different sectors also appears fairly arbitrary. For example, the section on health care omits language barriers, a particularly prevalent form of discrimination within the health sector.
7.2.2 There are different concepts and terminology used in dealing with unfair discrimination within each of these sectors. Each of these different concepts requires that different tests be applied. For example, the health sector refers to “unfair or unreasonable discrimination” as well as to “unfair disadvantage”. This will cause confusion as to what test should be applied in order to determine whether unfair discrimination has occurred within that particular sector.
7.2.3 Many of the provisions dealing with unfair discrimination within the sectors are inconsistent with relevant legislation within a particular sector. For example, the health sector makes much more limited reference to unfair discrimination in relation to privacy than the most recent version of the National Health Bill.
7.2.4 The sectors are drafted in a way that is vague, difficult to enforce, as well as not entirely consistent with the jurisprudence by the Constitutional Court. For example, in terms of section 20(1)(a), unfair discrimination in the provision of health care services would include “denying or refusing any person access to health care facilities or failing to make health care facilities accessible to any person.” This provision is extremely broad, and would effectively place an obligation on both the State and the private sector to ensure that all forms of health care services and facilities (even expensive tertiary forms of care) were made available to everyone on demand. Failing to do so, would automatically constitute unfair discrimination.
7.2.5 The relationship between certain of the sector-specific defences and the general defence in section 43 is particularly problematic. For example, section 17(1)(a) says that: “Provided that nothing in this Act prohibits the provision of gender-specific schools.” What if there is only one school in a particular area through which children can access their right to basic education in terms of section 29(1)(a) of the Constitution? Would it be permissible to designate this school for boys only or for girls only? The way that this section is drafted means that it is not subject to the general defences in terms of section 43.
7.3 On this basis, we suggest that unfair discrimination within particular sectors should not be included in the Bill. Instead, there should be a single workable definition of discrimination, which would clearly cover forms of discrimination within particular sectors.