Discrimination can broadly be defined as the biased or unjust treatment of an individual or a group of people that results in that person or group being denied opportunity or rights. Discrimination is often informed by prejudice of some sort, be it class, gender, sexual orientation or race.

At a time when most democracies are furthering human rights legislation, and when bumper stickers inform us that only laundry should be separated on the basis of colour, the idea of ‘positive discrimination’ certainly seems like an oxymoron. The purpose of this article is to examine the notion of positive discrimination and make sense of this seemingly nonsensical concept generally and in particular in relation to labor law in South Africa.

South Africa’s history of racial segregation and oppression permeated all aspects of life and had a devastating impact on labor in the country. Migrant laborers experienced the brunt of this inhuman legislation. Black professionals had limited opportunities to grow and develop, as job reservation for whites was common practice. It was in response to this that the democratically-elected government introduced the Employment Equity Act of 1998 (EEA).

The Act recognizes the need to address the historical disparities in employment, promote the Constitutional right of equality and eliminate unfair discrimination in employment. The word ‘unfair’ draws particular attention, as it suggests that fair or positive discrimination is permissible. The Act addresses both fair or positive discrimination and unfair discrimination. Unfair discrimination pertains to an employment policy or practice that discriminates directly or indirectly on the grounds of a number of factors including, race, gender, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, language and birth.

Fair or positive discrimination in contrast applies to affirmative action policies. Section 6(2) explicitly states that affirmative action measures do not constitute unfair discrimination. Discrimination is thus not unlawful. This may seem confusing and perhaps even  unpalatable to some. After all, how can a constitution allow for any form of discrimination?

The Constitution is the Holy Grail, it is the supreme  law of the land and all other laws are guided by what is set out in the Constitution. The South African Constitution is celebrated as the most progressive Constitution in the world. It is heralded as such because it not only protects the rights and freedoms of individuals, but also furthers the ends of justice and transformation by advocating the idea of substantive equality.

The Constitution envisages specific instances in which certain forms of discrimination are deemed to be fair. It does so to address the imbalances of the past. The South African Constitution advocates the idea of substantive equality, and not equality, per se, as a means to create a more equal and prosperous society.

The application of affirmative action employment policies promoting the preference of black  over white candidates for a particular employment opportunity or post has become commonplace in an effort to transform South African society. The pursuit for demographic alignment and transformation through corrective action accordingly necessitates the application of discriminatory practices and entrenches the notion of “fair discrimination” in a constitutionally supported effort to redress historical injustice.