What exactly is ‘unfair discrimination? What is the difference between unfair discrimination and discrimination that is not unfair? And how has the Constitutional Court of South Africa answered this difficult moral question?
These are some of the questions that Denise Meyerson of the Macquarie Law School at Macquarie University in Australia is investigating in a project that involves developing a theory of discrimination and using it to evaluate the Constitutional Court’s approach to the guarantee of non-discrimination contained in the South African Constitution.
“The Constitution guarantees the right not to be ‘unfairly discriminated’ against on a number of grounds, such as race, gender, sex, pregnancy, marital status, disability and religion. It is, however, silent as to the circumstances in which discrimination is unfair, leaving it to the Constitutional Court to give content to this notion,” said Meyerson. “I view the Court’s interpretation of the concept of ‘unfair discrimination’ through the lens of philosophy, beginning by exploring the role played by the concept of discrimination in our moral and political vocabulary, analysing forms of wrongful discrimination, and arguing that the deeper philosophical justification for norms prohibiting them can be found in relational theory.”
Two kinds of discrimination
Meyerson explained that in the traditional sense discrimination is about unequal treatment based on membership or perceived membership of different socially significant groups – “so, for example, someone not being employed on the basis of their religion”. It involves being treated differently and implies pervasive, non-accidental mistreatment. This kind of discrimination is direct.
“In an extended sense, discrimination involves an unequal effect connected to group membership. For example, an employer wants all employees available for shift work. This means males and females are treated equally, but some women may not be able to work shifts due to childcare responsibilities, so there is a disproportionate impact on them. The employer didn’t anticipate the discrimination, but it is predictable – so it is indirect discrimination.”
“However, there are also cases where unequal treatment and unequal effects are justified – for example, you would not want to hire men in a job that involves body searching women.” Discrimination is wrong when it violates the right to equality but the right to equality doesn’t necessarily require equal treatment.
When is direct discrimination wrong?
Outlining the work of legal theorists and philosophers such as Sophia Moreau, Deborah Hellman and Elizabeth Anderson, Meyerson explained the liberty-based, social-meaning and relational accounts of discrimination.
“In Moreau’s liberty-based account, discrimination involves someone being disadvantaged by taking away their deliberative freedom. For instance, having to choose between religion and a job would be an infringement of deliberative freedom and being forced to make such a choice would be discrimination, according to Moreau.”
Moreau’s account implies that someone can be discriminated against even if no-one else has been treated differently. In fact, if everyone has been treated equally badly, Moreau would say that everyone has been discriminated against. Meyerson argued that this is implausible, saying that although it would be wrong to deprive everyone of their deliberative freedom, this wrong is not the wrong of discrimination, because the point of the concept of discrimination is to capture the inferior treatment of members of some groups relative to others.
Meyerson explained that the social-meaning account defended by Hellman holds that direct discrimination is wrong when it is demeaning or sends a message of lesser worth. In order to determine whether an act is demeaning you have to discern its meaning in the social and historical context. Meyerson also argued that relational theory and relational egalitarianism provide support for the social-meaning account, since they highlight just social relationships as central to the achievement of an equal society. According to relational egalitarians such as Anderson, it is necessary to eliminate unjustified social hierarchies, so that people relate as social equals – in other words, no citizens should be branded as inferior or second-class.
When is indirect discrimination wrong?
“Indirect discrimination is usually unintentional and not demeaning. There is usually a reason behind it which can sometimes justify it,” said Meyerson. “But the justification should be strong when a group is socio-economically disadvantaged, and the indirect discrimination exacerbates disadvantage. If indirect discriminatory acts perpetuate the lower social position of those already disadvantaged, they should be more difficult to justify, and regarded as wrong unless there are strong countervailing reasons.” Meyerson argued that relational egalitarianism also provides support for this view.
Equality in the South African Constitution
Meyerson noted that in South Africa equality is a foundational value of the Constitution and a protected right defined by Section 9 of the Bill of Rights. This section guarantees the right to equal protection and benefit of the law, permits positive measures to advance equality, and prohibits ‘unfair discrimination’.
“One of the iniquities of apartheid was its denial of people’s dignity and inherent worth,” she continued. “The Court sees the purpose of Section 9 as aiming to reverse that. Impairment of dignity is consequently central to how the Constitutional Court understands the notion of unfair discrimination, and laws that treat people differently will be struck down if they impair dignity.”
A 1998 case (Harksen v Lane) laid down the dignity-based test for unfair discrimination – emphasising the need to consider the position of the complainants in society, whether they have suffered from disadvantage, and the extent to which their fundamental human dignity has been impaired. In explaining the dignity test, the Court has frequently focused on whether a discriminatory law sends a demeaning message or a message of inferiority.
Meyerson stated that this approach is prominent in the Court’s sexual orientation decisions, “which are regarded as among the most progressive in the world.” “Between 1999 and 2007 seven laws were invalidated for unfairly discriminating on the basis of sexual orientation. The Court repeatedly affirmed that these laws were unfairly discriminatory not only because of the harms they caused but also their symbolic message of inferiority.”
But Constitutional Court decisions are often controversial, and Meyerson pointed to three cases where the dignity test was arguably misapplied – S v Jordan in 2002, where a law that made it a criminal offence for sex workers to engage in prostitution but not their customers was not seen as unfairly discriminatory; Volks v Robinson in 2005, where a law that provided for a surviving spouse to receive maintenance from the estate of their deceased spouse but not an unmarried cohabiting partner was not seen as unfairly discriminatory; and, AB v Minister of Social Development in 2017, where a law that required a child born as a result of surrogacy to be genetically related to both commissioning parents or, if this was not possible, to one of them was not seen as unfairly discriminatory.
But overall, Meyerson believes that the normatively attractive framework of relational egalitarianism offers a useful lens through which to view the Constitutional Court’s equality decisions. “Relational egalitarianism identifies the value of equality with the elimination of hierarchies of status that stamp some citizens as superior and others as second class. Its conception of an equal society is one in which all citizens relate to each other as equals and enjoy equal standing.”
“Without suggesting there is only one theoretical commitment underpinning the Court’s approach, I believe that many of the Court’s landmark decisions in this area implicitly understand the purpose of the non-discrimination rights conferred by the Constitution in relational terms. The decisions in the heartland of the Court’s equality doctrine are therefore morally justified and orienting the Court’s decisions around the social-meaning account and relational theory has considerable power.”
In discussion, Meyerson addressed the challenges in bringing such cases to court; the need for systemic change; why people discriminate; religious freedoms; affirmative action; and the impact of changing social norms.
When freedom of religion comes into conflict with anti-discrimination norms, Meyerson explained that the rights need to be balanced against each other. “Freedom of religion obviously has limits, but one relevant factor in balancing the rights is whether the religious beliefs that compete with anti-discrimination norms are core to the religion in question. It’s not appropriate for the law to prohibit a core religious practice unless there is a good justification for doing so. That would be a dictatorial society which gives very little space for the exercise of religious freedom.”
“Why do people have the impulse to discriminate? It’s a complicated story and law is only one aspect in combatting discrimination. I don’t have an inflated idea of what the law can accomplish. Social change is very important.”
“I agree completely on the underlying systemic problems – the assumed norm is often white, male, and able-bodied, and many social practices are not designed for people who don’t conform to the norm. Discrimination doesn’t have to be conscious – we act on unconscious biases all the time.”
“Affirmative action is not necessarily in conflict with equality as understood by relational egalitarians. It’s about remedying group inequality. But there are limits – not all affirmative action is aimed at redress.”
“You have to prove discrimination and, if social norms change, such as women no longer taking primary responsibility for childcare, it would no longer be possible to prove that a particular job requirement, such as shift work, has a disproportionate impact on women. It will be interesting to see how it’s handled.”
Michelle Galloway: Part-time media officer at STIAS
Photograph: Anton Jordaan