The Employment Equity Amendment Act (EEA), prohibits unfair discrimination based on arbitrary factors and outlines the defence that discrimination is not unfair if linked to an inherent job requirement or a particular skill required to perform the job.
Also refer our article Discrimination in the Workplace – Part 1 describing what discrimination is and the types of discrimination.
Many employers use the inherent requirements as a reason not to appoint a candidate in a job because he/she does not meet the requirements of the job which may be construed as unfair discrimination
The case of Damons v City of Cape Town revolves around discrimination in the workplace, focusing on the concept of inherent requirements of the job as a defence, and the extent of reasonable accommodation for employees unable to meet these requirements. The central question posed was whether the employer had unfairly discriminated against the employee based on disability and whether the principle of reasonable accommodation should apply in such cases.
The respondent municipality’s Fire and Rescue Service employed the applicant as a firefighter. However, an accident during training rendered the applicant permanently unfit for regular firefighting duties. Despite his limitations, he was transferred to an administrative role while retaining the firefighter designation and associated remuneration. The municipality had a promotion policy prescribing that individuals seeking advancement to the position of senior firefighter needed to meet specific physical fitness criteria. Despite failing to meet these requirements, the applicant applied for the senior firefighter position, which was subsequently denied on the grounds of his inadequate physical fitness.
The applicant argued that he had suffered unfair discrimination due to his disability, contending that the municipality should have accommodated him by waiving the physical fitness criterion.
The Labour Court initially ruled in favour of the applicant, but on appeal, the Labour Appeal Court (LAC) held that physical fitness was an inherent requirement as defined in the EEA. The LAC’s decision was then challenged in the Constitutional Court.
The Constitutional Court emphasised that the inherent requirement defence provided by Section 6(2)(b) of the EEA was a ‘complete defence’. However, it delved into whether an obligation existed for the employer to reasonably accommodate the employee. The Court clarified that reasonable accommodation aimed to level the playing field between disabled and non-disabled employees regarding job performance. This obligation only applied if such accommodation would enable the employee to fulfil the inherent job requirements. Beyond this, accommodation ceased to be reasonable, as it would necessitate employing someone unable to meet the essential job criteria.
The Constitutional Court determined that the municipality had not unfairly discriminated against the applicant. While the EEA’s inherent requirement defence protected the employer, the Court underlined that reasonable accommodation should only extend to what enables an employee to meet the essential job requirements. In cases where accommodating a disabled employee goes beyond this scope, it is deemed unreasonable. This decision has significant implications for understanding the intersection of inherent job requirements, reasonable accommodation, and unfair discrimination in the workplace.