Actual past discrimination or group membership as a requirement to benefit from affirmative action: A comparison between South African and American case law

Abstract

This note analyses the South African and US positions with regard to the issue of whether actual past discrimination is required as a prerequisite to benefit from affirmative action or whether membership of a designated group will suffice. The focus is on employment law. Categorisation of affirmative action beneficiaries and criticism of the same are covered. The consequences of over- and under-inclusiveness will briefly be addressed. This is done against the background of the various notions of equality. It seems that the US courts (following the notion of equality of opportunity) had initially been unwilling to accord Blacks and women the benefit of a conclusive presumption of victimization, notwithstanding wide acceptance of the fact that discrimination had adversely affected them. A showing of actual past discrimination was required until the late 1980s when case law made it clear that this was not necessary any longer. At present, however, the pendulum has moved back again and a strong evidentiary basis must be made out that discrimination had in fact taken place and that it had an impact on the group as a whole. In SA where affirmative action has been implemented only since 1999 (in contrast to the 40 years of experience of the US), the courts quickly made it clear that membership of a designated group and not actual disadvantage is what is required. This interpretation is in line with the notion of substantive equality, as embraced by the Constitution and the EEA. Hopefully, this approach will successfully address SA’s history of systemic and pervasive discrimination. Although the use of categories of beneficiaries will no doubt also lead to over-inclusion, it should be kept in mind that the situation in SA is different to that of the US, in that a majority must be affirmed.