Two-Test Analysis for determining unfair discrimination as per Harsken
First Stage is to determine if there exist a differentiation and whether or not that differentiation amounts to discrimination.
Second stage is to determine if the discrimination is fair or unfair: if on a listed ground then its prima facie unfair (onus on the defendant) if on an unlisted ground it is not unfair (onus on the applicant/plaintiff); fairness is determined by looking at the factors in PEPUDA.
This test is not applied when dealing with affirmative action because the tests that have been looked at for that include: the rationality test, proportionality test and fairness test( disputed)
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Негізгі бет Is it Unfair Discrimination?
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