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Equal Opportunity Commission

Indirect Discrimination


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Direct discrimination
 
The following criteria have to be satisfied for a finding of direct discrimination:
 
The discrimination should be based on the status of the aggrieved person or a characteristic that generally appertains or is imputed to persons of the status of
the aggrieved person; and
 
The discriminator treats or proposes to treat the aggrieved person less favourably than he treats or would treat a person of a different status in the same or similar circumstances.
 
Indirect Discrimination
 
The following criteria have to be satisfied for a finding of indirect discrimination:
 
The discrimination has to be based on the status of the person;
The discriminator imposes, or proposes to impose, a condition, requirement or practice on the aggrieved person;
The condition, requirement or practice is not justifiable in the circumstances; and
The condition, requirement or practice has, or is likely to have, the effect of disadvantaging the aggrieved person when compared to other persons of the same status.
 
It is up to the discriminator to prove that a condition, requirement or practice is justifiable in the circumstances.
 
The determination as to whether a condition, requirement or practice is justifiable in the circumstances would depend on the following:
 
What is the nature and extent of the disadvantage resulting, or likely to result, from the imposition or proposed imposition of the condition, requirement or practice?
What is the likelihood of overcoming or mitigating the disadvantage?
Is the disadvantage proportionate to the result sought to be achieved by the discriminator?