Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (Act No. 4 of 2000)Chapter 3 : Burden of Proof and Determination of Fairness or Unfairness14. Determination of fairness or unfairness |
(1) | It is not unfair discrimination to take measures designed to protect or advance persons or categories of persons disadvantaged by unfair discrimination or the members of such groups or categories of persons. |
(2) | In determining whether the respondent has proved that the discrimination is fair, the following must be taken into account: |
(a) | The context; |
(b) | the factors referred to in subsection (3); |
(c) | whether the discrimination reasonably and justifiably differentiates between persons according to objectively determinable criteria, intrinsic to the activity concerned. |
(3) | The factors referred to in subsection (2)(b) include the following: |
(a) | Whether the discrimination impairs or is likely to impair human dignity; |
(b) | the impact or likely impact of the discrimination on the complainant; |
(c) | the position of the complainant in society and whether he or she suffers from patterns of disadvantage or belongs to a group that suffers from such patterns of disadvantage; |
(d) | the nature and extent of the discrimination; |
(e) | whether the discrimination is systemic in nature; |
(f) | whether the discrimination has a legitimate purpose; |
(g) | whether and to what extent the discrimination achieves its purpose; |
(h) | whether there are less restrictive and less disadvantageous means to achieve the purpose; |
(i) | whether and to what extent the respondent has taken such steps as being reasonable in the circumstances to— |
(i) | address the disadvantage which arises from or is related to one or more of the prohibited grounds; or |
(ii) | accommodate diversity. |