Applying the intersection between defence of the inherent requirements of the job and the duty to provide reasonable accommodation for persons with disabilities in the workplace : Damons v City of Cape Town

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Routledge

Abstract

In Damons v City of Cape Town (2022), by a majority, the Constitutional Court held that the inherent requirements of the job defence in s 6(2)(b) of the Employment Equity Act is a complete defence to a charge of unfair discrimination in respect of an employee who has no capacity to perform the job in question due to a disability that cannot be rehabilitated or reasonably accommodated. By contrast, in a sole dissent, Pillay AJ held that s 6(2)(b) is not a complete defence where the employer ought to have created a new position to fit the capacities of the employee as a reasonable accommodation measure. This commentary explores the implications of the Damons case and appraises the divergent approaches of the Constitutional Court.

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Keywords

Persons with disabilities (PWDs), Employment, Unfair discrimination, Equality, Non-discrimination, Reasonable accommodation, Inherent requirements of the job

Sustainable Development Goals

SDG-08: Decent work and economic growth
SDG-10: Reduces inequalities

Citation

Charles Ngwena (2023) Applying the intersection between defence of the inherent requirements of the job and the duty to provide reasonable accommodation for persons with disabilities in the workplace: Damons v City of Cape Town, South African Journal on Human Rights, 39:2-3, 210-224, DOI: 10.1080/02587203.2024.2325409.