4. Friday, December 8, 2000

Session 1

The Women's Economic Equality Project

The Women’s Economic Equality Project was founded in 1998 in recognition of the need to ensure that women’s experiences and needs are considered in a meaningful way in the implementation and adjudication of economic, social and cultural rights treaties and related domestic laws.  The Consultation on Women’s Economic Equality opened with a warm welcome to all of the participants. The organizers expressed their pleasure at being able to host the Consultation in South Africa, where economic and social rights are justiciable constitutional rights and where there is ongoing activism to advance women’s economic and social equality. 

Session 2

Introduction of Participants

Consultation participants each provided an overview of their work and how they have come to focus on women’s economic, social and cultural human rights. 

(Please see Appendix)

Session 3

Part 1

The Equality Rights Framework

What Does Equality for Women Mean?

- Gwen Brodsky and Shelagh Day (Canada)

The presenters stressed that this is an important moment for women to push forward a big, substantive idea of women’s equality. Despite the many commitments to women’s equality that have been made by governments at the domestic and international levels over the last fifty years, women are being pushed backwards by the impacts of structural adjustment programs and by the global neo-liberal agenda. This agenda promotes small government, the privatization of public services and institutions, deregulation, and trade liberalization. In this political climate, it is too easy for governments, international financial institutions, and corporations to embrace a version of equality that treats economic policy as though it is completely unrelated to the advancement of women.  At stake is the ability of women’s human rights to be a vital, responsive, alternative discourse in a time of national and global restructuring. There is a danger that the human rights of women may slide into irrelevance unless they are understood by women, and interpreted by governments, courts, and corporate actors to have content that can address the threats to women’s advancement that neo-liberal economic policies currently pose.

Offering an example from Canada, the presenters noted that Canada’s social programs were restructured in a profound way in 1995. Federal legislation that set standards for social assistance in all jurisdictions was repealed, cost-sharing arrangements between federal and provincial governments for social assistance and key social services were abandoned, and the federal government cut the amount of its financial transfers to the provinces for health, post-secondary education, and social assistance. The result has been cuts in welfare rates and tightened eligibility rules, cuts to social services - including shelters for battered women and home care for people with disabilities, increased tuition fees and high debt loads for students, and a beleaguered health care system.

This restructuring has harmed women, who are the majority of the poor in Canada, the majority of those reliant on social assistance, and major users of social services. For Aboriginal women, women of colour, immigrant women, women with disabilities, single mothers, and elderly women, groups who have the highest rates of poverty, the impact is most severe.

It is clear that this restructuring has increased the economic and social vulnerability of women. It has meant cuts to the “good jobs” that women had in the care-giving sector – full-time jobs with union security and benefits; cuts to social services, such as child care, home care services, and counseling that many women count on to fill in essential gaps, to keep themselves and their families afloat; and cuts to social assistance rates, ensuring that the poorest women will be even poorer. In addition, this restructuring pushes more unpaid care-giving work back onto women, constraining their participation in paid work and making them more economically dependent.

In Canada, social programs and social services are a central means of assisting women to contend with conditions of social and economic inequality. What is most disturbing of all, in light of the tight connection between social programs and social services and women’s equality, is that the most drastic changes to Canada’s social programs of the last 40 years were presented as a purely budgetary matter, unrelated to the rights of women. 

How can this happen? The commitments to equality for women that have been made over the last fifty years by many nations in domestic law and through international treaties must be understood to encompass the goal of redressing the social and economic inequality of women. This seems an incredibly obvious claim. Why is it even necessary to argue that the commitment to women’s equality includes a commitment to address the social and economic dimensions of women’s inequality? The answer to this, the presenters contended, lies, in part at least, in the persistence of formal equality thinking.

Formal equality is an old idea. Formal equality theory assumes that equality is achieved if the law treats likes alike. An absence of different treatment of men and women in the form of the law (gender neutrality), together with neutral application of the law, is thought to make men and women equal. Certainly, there are times when like treatment is exactly what women want. Fights for the vote and for the right to inherit property are fights by women to be treated the same as men at law. In circumstances where women and men are identically situated with respect to the opportunity or right sought, the model of formal equality works. However, when women and men are not identically situated, which is most of the time, the formal equality model is no help; in fact, it perpetuates discrimination, because it cannot address actual inequality in conditions.

Closer examination of formal equality reveals that it is not just one concept but rather a package of interlocking puzzle pieces, which together, function to both conceal and legitimize the oppression of marginalized groups in the society. The formal equality framework is characterized by:

• acceptance of the highly mechanical Aristotelian formulation that things that are alike should be treated alike, while things that are unalike should be treated as unalike in proportion to their unalikeness;

• a refusal to see that equality is actually a question of inequality, that is, of dominance and subordination between groups in the society;

• a refusal to see that relations of inequality between groups are sustained by government inaction as well as by government action;

• a propensity to place many forms of inequality in a realm, such as the family or the market, that is categorized as “private,” beyond the reach and responsibility of government;

• a central commitment to a policy of blindness towards personal characteristics thought to be out of the control of the individual, such as genitalia and skin colour;

• resistance to dealing with discrimination relating to a category of stigmatization concerning which there may be a significant element of choice, such as being lesbian, or which, like poverty, is not readily reduced to personal characteristics that are analogous to genitalia and skin colour;

• an incapacity to deal with the adverse effects of facially neutral laws or policies;

• an understanding of discrimination, not as systemic, but rather as consisting of explicit, differential treatment;

• a tendency to individualize everything so that patterns of group-based oppression and subordination are rendered invisible;

• a conception of government as always a threat to individual liberty, and not as a significant actor in creating the conditions necessary for human flourishing.

The neo-liberal restructuring agenda tends to reinforce formal equality thinking, because formal equality tends to idealize market freedom and demonize State intervention to ameliorate extreme disparities in wealth and social power. It supports social Darwinism by asserting that as long as laws and policies are facially neutral, everyone has the same opportunities, and those who flourish do so because of their fitness.

Fortunately, however, equality thinking has moved well beyond this narrow interpretation over the last 50 years. The meaning of equality has changed and expanded dramatically. It is widely understood now that women as a group are disadvantaged, and that equality measures must address the economic, social, legal and political dimensions of that group disadvantage. This newer and broader understanding is referred to as substantive equality. By contrast with formal equality, a substantive version of equality reflects the following insights:

• equality is not a matter of superficial sameness and difference, but rather a matter of inequality, that is, of dominance, subordination, and material disparities between groups;

• it is the effects of laws, policies and practices, not the absence or presence of facial neutrality, which determines whether they are discriminatory;

• addressing inequality between groups requires government action;

• the so-called “private” realms of the family and the marketplace cannot be set outside the boundaries of equality inquiry or obligation, because they are key sites of inequality;

• neither liberty nor equality for individuals can be achieved unless equality is achieved for the groups of whom disadvantaged individuals are members;

• it is essential to be conscious of patterns of advantage and disadvantage associated with group membership;

• the test for inequality is not whether a law or policy treats an individual unfavourably in comparison to members of a group whom he is like; rather the test for inequality is whether a law or policy causes, keeps in place, or exacerbates disadvantage in real conditions, including economic conditions, for the members of an historically oppressed group.¹

If formal equality is the accepted version of equality, the violation of women’s rights that is inherent in the restructuring of social programs is made invisible. On its face, restructuring is gender neutral; as a policy, it applies to men and women in the same way.  There appears to be no problem.  On the other hand, substantive equality, which is focused on effects, can recognize that the pre-existing disadvantages of women are exacerbated by cuts to social programs, and that this violates women’s human rights.

However, whether our starting point is women’s equality or women’s economic and social rights, there is a fundamental problem rooted in dominant thinking about rights that confronts any claim for redistributive justice. The fundamental problem is that “real rights” are seen to be negative checks on government, intended to assure a large sphere of individual freedom. The individual is conceptualized as universal (that is, male), autonomous, and unconstrained by group circumstances. The greatest threat to individual freedom is understood to be the heavy hand of government, as expressed through policing and laws that diminish personal liberties, including freedom of contract. State inaction and omissions are not the subject matter of such rights.

The civil and political rights contained in the International Covenant on Civil and Political Rights (ICCPR) are generally understood to fall within the negative rights paradigm, and therefore to enjoy the status of real, enforceable rights.  Formal equality, as we have defined it, exemplifies this version of rights. A necessary corollary to this negative rights paradigm is that redistributive social and economic measures undertaken by governments are not seen as falling within the scope of rights. Governments may choose to initiate redistributive measures if they wish, and may make commitments to social and economic “rights”, but redistributive measures are not subject to rigorous judicial review, and social and economic rights commitments are not actually enforceable. The positive rights in the ICESCR are considered by many to be of the “not real rights” variety.

This disconnection within dominant rights discourse between rights on the one hand and social and economic policy on the other, of which the separation of the civil and political rights covenant from the social and economic rights covenant is just a reflection, threatens to terribly diminish the effectiveness of women’s rights guarantees if it prevails, no matter what our starting point is.

In practice, we face this dilemma. If a woman’s equality rights claim is seen as falling in the civil and political/negative rights category, and the claim involves the State in a redistributive role, only facially discriminatory laws are likely to be seen as constituting rights violations. Conversely, if a woman’s claim is seen as falling in the social and economic rights category, it is unlikely to be enforced. Nothing short of breaking away from this categorical approach to women’s claims of economic inequality will suffice.

A current Canadian example illustrates the point. In the 1980’s the Government of Quebec instituted a welfare regime under which people younger than 30 had their social assistance benefits reduced to one-third of the amount that the government had determined was necessary to meet basic needs for food, clothing, and shelter (that is, to about CDN170 dollars, or about USD110).

The affected group was poor young people, including poor young women. The Quebec regulation, which on its face, discriminated against all people under 30, was challenged by a woman named Louise Gosselin in a class action under the Canadian Charter of Rights and Freedoms and s. 45 of the Quebec Charter of Rights. The claim was defeated at two levels of court in the province of Quebec. At the time of this writing an appeal is pending in Canada’s highest court, the Supreme Court of Canada.

The Quebec Court of Appeal judgement exemplifies both faces of the “real rights”/social policy distinction that plagues both domestic and international human rights law. Because the challenged regulation was facially discriminatory on the basis of age, it fit easily within the formal equality paradigm, and, the majority of the Court held that it violated the Charter’s equality guarantee, although ultimately, as explained below, the Court found that the discrimination was justified.

Formal equality is notoriously hostile to legislation that makes explicit distinctions based on presumptively irrelevant grounds, of which age is generally considered to be one. However, formal equality does not regard as problematic the adverse effects on women of laws that are gender neutral on their face.

In keeping with a formal equality paradigm, not one member of the three-judge Court in Gosselin placed any significance on the fact that the affected group included poor women, or to put it differently, that Louise Gosselin – the plaintiff – was not just under 30; she was also poor, and a woman. The Court of Appeal was pre-occupied with the facial distinction between those under 30 and those over 30. This pre-occupation with the form of the legislation, and the concomitant failure to consider the real composition of the affected group and the effects of the law on that group, resulted in an extremely thin characterization of the harm occasioned by the regulation.

Had the judges chosen to look beyond the facial age-based distinction to see Louise Gosselin in her totality as a poor young woman, then they might have been struck by the fact that poverty is central to the inequality that women experience as a group, and they might also have been concerned about the fact that there is a well-recognized link between poverty, violence against women, and loss of sexual autonomy, as exemplified in the facts of this case. Louise Gosselin was followed home by a man from whom she was receiving food who then attempted to rape her. She had no stable shelter or physical security. At different times, she lived in a boarding house, and in shelters for homeless people, where she was sexually harassed. She prostituted herself in order to buy clothes so that she could apply for jobs. She attempted to commit suicide.

So when the claim is seen as a civil and political/negative rights claim, we get a formal equality treatment of the case, which does not look beyond the facial distinction in the legislation.

Then there is the “social policy” problem. Even though a majority of the Court of Appeal in Gosselin found there to have been an equality rights violation, ultimately relief to Louise Gosselin and the members of the group she represented was denied, because the justices recognized this case as raising social policy concerns. Yes, there was an equality rights violation, but it was, according to the majority, a “justified” violation of rights. A significant factor in the reasons provided in support of this conclusion was the characterization of the case as being about “social policy” and the “distribution of scarce resources” (and hence a matter not for the courts but for the politicians).

What Gosselin shows is how deeply lodged in dominant rights thinking is the view that “real rights” are civil and political rights, whereas social and economic rights are not really rights at all. It is readily apparent that the task of making rights discourse responsive to women’s social and economic inequality entails more than adding women’s perspective to social and economic rights. Even if the image of the social and economic rights claimant can be complicated by bringing women to the fore, and the social and economic rights framework enriched by making it deal with women, the problem of the presumed non-enforceability of these rights remains.

It is important to be ready to deal with the difficulty of achieving the status of enforceability for social and economic rights. Underlying the idea that social and economic rights should not be imposed on governments as positive obligations is the entrenched view that rights are negative checks on incursions by governments into the private lives of citizens and the private spheres of the family and the market. Making women’s social and economic inequality a legally redressible matter requires challenging the legitimacy of the purported distinction between civil and political rights on the one hand and social and economic rights on the other.

Central to the substantive equality project is the need to break down this division. Realizing women’s right to equality is contingent on the social and economic dimensions of that right not being excised and relegated to the status of unenforceable statements of government aspiration, leaving only formal equality as the residue of what equality means. To say this differently, a persuasive way to construct the claim for the feminization of social and economic rights and for the enforceability of those rights is by means of an equality-based argument. Such an argument has these elements:

• women have a right to equality;

• equality as an encompassing right has economic, social and cultural, as well as civil and political dimensions;

• women’s equality rights must be informed by the whole panoply of international human rights guarantees;

• women have a right to the equal benefit of all international human rights treaty commitments, including those in the ICESCR;

• although women are entitled to the equal benefit of social and economic rights guarantees, unenforceable statements of government aspirations are not a substitute for the fully enforceable right to substantive equality of which women’s social and economic rights are an integral part.

Discussion

More than 50% of the UN membership States recognise social and economic rights to varying degrees and in various forms (eg. labour; social security, environment and education etc.). The reality is that in most constitutions that recognise these rights, the equality provision is very weak because mostly it has been interpreted as formal equality. It is important to move away from the perception that social and economic rights are not enforceable. It is also important to distinguish between a lack of enforceability and inefficient implementation of these rights.

…

An approach is needed that allows us to use both equality and social and economic rights. This should, however, not be done at the expense of the autonomy of social and economic rights. The State's delivery of all rights, but especially of social and economic rights, is depreciating at a great pace. What are the best methods available to counteract this?

…

The move to a discourse of disadvantage does not solve all of the redistributive issues unless the comparator group and the disadvantaged group are disaggregated. Our theories and strategies need to reflect the reality that women are not only different from men, but are also different from each other.

…

It is important to work both for substantive equality and for a feminized version of social and economic rights. If these projects are disconnected the result may be a hollowing out of the meaning of both women’s right to equality, and women’s social and economic rights.

…

When we assess what the right to housing means to women, we find that its realization requires a substantive understanding of women’s right to equality. By using the language of social and economic rights we do not lose the essence of substantive equality. Social and economic rights and equality rights are not disconnected. What we need is a synthesis of both.

Part 2

An Equality Rights Case Study

South Africa’s New Equality Legislation

- Sandy Liebenberg and Michelle O'Sullivan (South Africa)

The presenters discussed South Africa’s new equality rights legislation, legislation that is second only to the Constitution as a tool for redressing the apartheid legacy. They described the context in which the legislation will come into force.

The Gini-coefficient function, which is a measure of inequality, indicates that South Africa is second to Brazil. Addressing this inequality is important to the stability of the South African Constitutional Order. Poverty and race overlap. Poverty also has racialised gender dimensions, particularly for African women. The changing nature of work in the labour market has largely been to the detriment of women in general, but particularly of socio-economically disadvantaged women, the majority of whom are African. Women’s disproportionate obligations for the care of both children and elderly people hamper their participation in commercial and political activities.  Racialised social security has recently been de-racialised (old age, disability, child support grants). However, problems remain. The rate of these grants is not indexed to the inflation rate; the administration is inefficient; there is general ignorance of the existence of these grants. All of these problems are detrimental for women.

The pace of customary law reforms, particularly with respect to inheritance, is hampered by the court’s deference to cultural and political concerns. African women’s disadvantage as a result of discriminatory rules of customary law persists despite a changing social context of migrant labour, urbanisation and the new values introduced by the democratic constitutional order. Customary law regulating the status of women, and their marital and inheritance rights, has resulted in women having unequal access to community power, land, housing, and other property.

The State’s response to this is the Recognition of Customary Marriages Act 120  of 1998, which came into effect on 15 November 2000. This legislation eradicates the status of women as legal minors subject to their husband’s guardianship. It recognises women’s equal capacity and full status to acquire assets and dispose of them, to enter into contract and litigate. There is criticism of the legislation, however, because it does little to remedy the position of women in existing customary marriages.

In the case of Mthembu v Letsela² the Supreme Court of Appeal cited with approval the customary law of inheritance, which is based on a system of male primogeniture, excluding women from inheriting any real rights in immovable property.  Currently, the South African Law Commission is engaging in reform in this regard. Of further concern is the status of women married in Muslim rites and those in non-traditional domestic partnerships whose relationships are not afforded any legal recognition.  Gender-based inequalities are also compounded by the extreme levels of violence against women (rape and domestic violence) in South Africa. The consequences include the abuse of children as a weapon against women, positive HIV-status, and diminished self-esteem and confidence. All these forms of violence against women continue to be major barriers to the achievement of women’s social and economic equality in South Africa.

The AIDS epidemic is another critical factor undermining women’s socio-economic equality in South Africa. Women are disproportionately affected by the AIDS-pandemic due to their increased biological and social susceptibility. The pervasive discrimination against people who are HIV positive or who have AIDS often manifests in eviction from their homes, loss of employment, violence and even death.

The causes and consequences of women’s social and economic inequalities in South Africa are complex and multifaceted, and have resulted in ‘deep patterns of disadvantage’. What is required now is active State regulation of the private sector to prevent all forms of direct and indirect discrimination against women.

Constitutional Court’s Jurisprudence on Equality

The Constitutional Court’s equality jurisprudence has made the law more responsive to the needs of disadvantaged women in South Africa. This has largely been as a result of the Court’s adoption of the substantive equality approach, which is defined by a focus on outcomes, and a recognition of the need for positive measures. Of particular concern, however, is the fact that the current jurisprudence on equality has largely been developed in the context of claims brought by relatively advantaged groups.

The Constitutional Court is not concerned with form but with the impact of discrimination. The Court’s commitment to substantive equality is consistently demonstrated by its emphasis on the need for any equality assessment to take into account South Africa’s particular history of apartheid as well as other systematic patterns of disadvantage, including sex and gender discrimination.

The Constitutional Court has also recognised that the open-endedness of the equality clause acknowledges the reality that the grounds of discrimination may intersect and overlap. This is of particular importance for black women who suffer unfair discrimination on more than one prohibited ground.

The Court has also recognized that equality permits affirmative action, and that a failure to take positive measures can be a violation of constitutional rights. South Africa’s new equality jurisprudence has been criticized by some. Albertyn and Goldblatt³ have argued that disadvantage should be the centre of the equality right, and not simply a factor to be weighed against others, including the impairment of dignity. The concept of dignity, they argue, returns us to a liberal and individualised conception of the right to equality. Such a conceptualisation skews the enquiry towards a concern with individual personality issues rather than an understanding of more material systemic issues and social relationships, which are the essence of the right.

In the Constitutional Court’s decision in Grootboom,⁴ a recent case about the right to housing, Justice Yacoob emphasized that all rights in the Bill of Rights are inter-related and mutually supporting. Consequently, affording socio-economic rights to all people enables them to enjoy the other rights enshrined in the Bill. He also emphasized the government’s obligation to the most vulnerable in society.

Analysis of the Equality Act

The Act focuses on the systemic social and economic inequalities generated by South Africa’s history. It recognizes the Constitution as the basis for progressively redressing these conditions. The Act is also a measure taken to further implement South Africa’s international obligations, in particular, the Convention on the Elimination of All Forms of Discrimination Against Women (1979), and the Convention on the Elimination of All Forms of Racial Discrimination (1966).  The Act’s focus on all present and emerging disadvantage allows a range of groups to benefit from the Act both in relation to unfair discrimination and positive measures, as opposed to singling out specific groups for protection.

The Act binds the State and all persons (private individuals and organizations), which means that it can be used to bring equality claims against the State separately or together with the Constitution. It is far-reaching in its scope as it is not sectorally-based and limited to spheres such as education, health and housing. Its application extends to every arena of life in South Africa, including the private domain. It therefore seeks to shatter the public/private divide, often assumed and re-entrenched by most legislation.

The Act’s primacy and importance in South Africa’s statutory scheme is indicated by its supremacy in cases of conflict with other statutes. The Act does not apply to employees with employment-related discrimination cases that are dealt with in existing legislation. However, employees who are not covered by the existing anti-discrimination statutes in the employment sector will be afforded protection by this Act. This is particularly relevant for women as they are over-represented in the informal sector.

Beneficiaries of Equality

The difficulty of proving cases of indirect discrimination experienced by disadvantaged groups is often a result of problems with identifying a required comparator and the necessity of providing detailed statistical evidence to prove indirect discrimination. The comparator for women, particularly socially and economically disadvantaged black women, is problematic as a court may often look at an able bodied, white, male, middle class person as a comparator.  The Constitutional Court’s recognition that the underlying purpose of the equality clause is to improve the position of disadvantaged groups, not to perpetuate the privileged position of relatively advantaged groups, will assist to address this concern.

Definition of (In) Equality

The legislation incorporates an impact-based analysis, which makes no provision for separate justification for indirect and direct discrimination. The definition of ‘discrimination’ and ‘equality’ and its focus are very broad and includes policy, practice, law, rule, condition or situation, which directly or indirectly imposes burdens, obligations or disadvantage on, or which withholds benefits, opportunity or advantage from any person on one or more of the prohibited grounds.

Disadvantage

The enquiry’s focus on disadvantage strongly suggests that the government has some positive obligations to ensure that the Act’s objectives are realized. Section 25 of the Equality Act sets out in some detail the duty of the State to promote equality and it also delineates the steps that the State should take to do so. Section 25(4) places an obligation on Ministers to implement, within available resources, measures aimed at the achievement of equality by eliminating any form of unfair discrimination and preparing and implementing equality plans in the prescribed manner. This formulation is consistent with the Constitution, which provides that socio-economic rights are subject to available resources, but does not so limit the provision of the right to equality. The State cannot, and must not, be allowed to dilute its obligations through the use of such provisions.

Determination of unfairness

Section 14 sets a test for unfairness, which focuses on 3 relevant factors:

i. the complainant and his/her position in society;

ii. the impact of the discrimination on the complainant;

iii. the objective justification for the discrimination, which focuses on the constraints and imperatives of the perpetrator of the discrimination.

The last factor has no constitutional basis and was mainly included because of the insistent demand of business interests that the costs of providing equality be “evenly” distributed.

Enforcement of the Act

The enforcement of the anti-discrimination provisions of the Act is carried out by the Equality courts. For the purpose of the Act, Equality Courts include all magistrates courts and every High Court. The Act adds value to the Constitution by creating remedies for its violation and mechanisms for its enforcement. The legislation will only be effective if violations are readily identifiable, remedies are available to redress the violations and mechanisms exist for the ready enforcement of the remedies. Priority with regard to access to these remedies and mechanisms is given to socially and economically disadvantaged women to assist them with the enforcement of their rights.

Discussion

Protective/anti-discriminatory laws have not necessarily penetrated the South African society. The biggest threat to these laws is the current valourisation of market principles.

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The following questions are crucial: who is benefiting from this legislation? How are they benefiting? Can equality discourse and legislation deal with and respond to diverse and often competing, community interests?

_…

The concept ‘disadvantage’ needs to be disaggregated: who are the disadvantaged? Class or socio-economic status needs to be re-centered in the inquiry regarding who is disadvantaged. This can be done without de-centering the important variable of race. This will require a much more sophisticated equality rights jurisprudence. Notwithstanding the fact that class/socio-economic status is not listed as a prohibited ground of discrimination, this suggestion is not a departure from the Constitutional Courts’ interpretation of the equality clause, since the Court has, in its development of the equality jurisprudence

emphasized that the focus is outcomes, and that requires a careful analysis of context and the individual’s position in society. Therefore an individual’s socio-economic status will have to be taken into account in order to assess whether the impact was detrimental.

_…

The fact that the legislation does not have a closed list of grounds means that there is ample room for the recognition of class as a prohibited ground of discrimination.

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Such a disaggregation of class, race, sex is necessary if the affirmative action policy provided for in the South African Employment Equity Act is to be realized to the benefit of the most vulnerable in society.

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Concern was expressed about the Courts being asked to make distribution assessments, which they are not suited to do.

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Unfortunately, affirmative action if often implemented in a way that is uncritical of the values underlying the workings of the market. So, as a policy, it attempts to improve the access of disadvantaged groups to the labour market; but it does not seek to transform normative imperatives of the workings of the market.

_…

With respect to the role of the courts, in the current context, where States are abrogating their social responsibility to the economic welfare of their peoples, the court, though not the most suited organ of State, may increasingly be required to tell governments to live up to their human rights commitments, including their social and economic rights commitments.