In New Zealand, it is unlawful for an employer to directly or indirectly discriminate on one of the specified grounds, whether it be in a job advert, interview, during employment or at the end of employment, eg when selecting for redundancy.
Anti-Discrimination Legislation
The Human Rights Act 1993 (HRA 1993) and the Employment Relations Act 2000 (ERA 2000) both prohibit discrimination on the following grounds:
- Age;
- Marital status;
- Gender;
- Religion;
- Ethnic origin;
- Ethical beliefs;
- Colour;
- Race;
- Employment status;
- Disability (including illness);
- Sexual orientation;
- Political opinion; and
- Family status.
There are two additional grounds of unlawful discrimination under the ERA 2000 relating to:
- An employee’s refusal to do work under section 28A of the Health and Safety in Employment Act 1992; and
- Involvement in the activities of a union.
There are exceptions in relation to employment matters for some of the unlawful grounds given in the Acts. For example, age discrimination may be justified if age is a genuine occupational qualification for the job.
Discrimination on other grounds, such as being a smoker, weight, height, personality, or criminal record, is not unlawful unless it leads to indirect discrimination on one of the unlawful grounds. For example, requiring a person to be under or over a certain height could indirectly discriminate on the ground of gender.
Discrimination Complaints Process
Both Acts enable employees to take legal action against their employer if they feel they have been unlawfully discriminated against in their employment.
Under the HRA 1993, the action the employee can take is to make a complaint to the Human Rights Commission (within 12 months). Under the ERA 2000, the action the employee can take is to raise a personal grievance (within 90 days). An employee can take one action or the other, but not both.
If the course of action they chose fails to produce the result they wanted, they cannot pursue the alternative course of action. Where the discrimination occurs during an employee’s employment, the most usual course of action is to raise a personal grievance.
Employers should establish procedures for dealing with complaints to maximise the possibility of in-house resolution. There are enormous advantages in resolving complaints in-house. Once complaints are formally laid under the HRA 1993 or the ERA 2000, the employer is faced with the legal and consequent financial liability.
Equal Pay Act
The Equal Pay Act 1972 (EPA 1972) makes it an offence to refuse or omit to offer any person the same terms of employment, conditions of work, fringe benefits, and opportunities for training, promotion, and transfer, as are made available for persons of the same or similar qualifications because of that person’s gender.
The EPA 1972 covers agreements made under the ERA 2000 and is administered by the Department of Labour. In practice, there have been few, if any, cases pursued under the EPA 1972.
Equal Employment Opportunities
Under the State Sector Act 1988, public sector employers must have an Equal Employment Opportunities (EEO) programme. There is no legislation in New Zealand requiring private sector employers to implement EEO programmes, but the Government encourages voluntary compliance with EEO principles, eg through the EEO Trust.
