Sections 21 and 22 of the Act specify that for discrimination to occur, the employer (or someone acting on the employer’s behalf) must make a discriminatory decision in one of the following areas:
- Applications for employment; or
- Providing terms and conditions of employment; or
- Opportunities for training, promotion or transfer; or
- Discipline or termination; or
- Retirement or causing to resign.
It is unlawful to discriminate on the grounds of an employee’s:
- Marital status, which means being:
- in a de facto relationship
- Religious belief
- Ethical belief
- Ethnic or national origins
- Disability, which includes:
- physical disability
- physical illness
- psychiatric illness
- intellectual or psychological illness
- presence in the body of disease causing organisms (eg Hepatitis C or HIV positive)
- Political opinion
- Employment status which means:
- being unemployed; or
- being a recipient of a benefit or compensation
- Family status, which means:
- being responsible for child care
- being married or in a de facto relationship
- having no child care responsibilities
- being responsible for dependants
- having no responsibility for dependants
- being a relative of a particular person
- Sexual orientation, which means:
- being heterosexual
- being homosexual
- being lesbian
- being bisexual
The Human Rights Act also distinguishes between direct discrimination and indirect discrimination.
Indirect discrimination occurs when an employer imposes a condition or requirement which, although sometimes apparently neutral, has the effect of disadvantaging a group of people who share one of the attributes listed in Section 21. Accordingly, Section 65 allows a complaint to be made where a particular practice or requirement, although not apparently contravening the Act, has the effect of being discriminatory. e.g., holding all training sessions in the evening may mean employees with family responsibilities cannot attend; or specifying that all job applicants must be able to lift 50kg weights regardless of the actual job requirements.
Section 68 of the Human Rights Act states that an employer is liable for all discriminatory acts by its employees, agents or principals whether or not those were done with the knowledge or approval of the employer.
Note: In such cases, a defence is available to an employer who can prove that it took such steps as were reasonably practicable to prevent the unlawful discrimination (e.g., by implementing an O policy and procedure). Similarly a defence is also available if the employer can show that someone purporting to act as its agent in committing the unlawful act did so without authority (e.g. an employment agency).
Sections 24 to 34 of the Human Rights Act 1993 set out various exceptions to the rules covering unlawful employment discrimination. These are:
- Exception in relation to foreign ship and aircraft crews
- None of the prohibited types of discrimination apply to the crew of foreign ships or aircraft if they were hired outside New Zealand.
- Exception in relation to national security
- Various restrictions on discrimination covering religion, political opinion, disability, family status, national origin and age do not apply to employment in national security agencies (e.g., the Security Intelligence Service).
- Exception in relation to work performed outside New Zealand
- Restrictions applying to discrimination covering sex, religion and age do not apply to work performed outside NZ (e.g. to conform with the laws, customs or practices of a foreign country where the work is to be performed).
- Exception in relation to authenticity and privacy
- Restrictions applying to discrimination covering sex, age, religion, disability, political opinion or sexual orientation does not apply to domestic employment in a private household.
- Rules on sex or age discrimination do not apply in circumstances where being a certain age or sex is an authentic occupational qualification for the position (e.g. for a theatrical performance or film role).
- Rules on sex discrimination do not apply where the position needs to be held by one sex to preserve reasonable standards of privacy (e.g. in a women’s lingerie shop) or in the location makes it impracticable for separate sleeping facilities to be provided for each sex (e.g. in a single bunk room on a fishing trawler).
- Rules on sex, race, ethnic or national origins or sexual orientation discrimination do not apply where the position is that of counsellor on highly personal matters (e.g. sexual matters).
- Exception for purposes of religion
- Sex discrimination rules do not apply to an organised religion (e.g. Catholic Church).
- Religious discrimination rules do not apply to the work of clergy, priests, pastors, officials or teachers in religious institutions or private schools.
- Exception in relation to age
- Rules on age discrimination do not apply where being a particular age is a genuine occupational qualification (e.g. for a theatrical role or film role).
- Exception in relation to political employment
- Rules on discrimination covering political opinion do not apply to people seeking employment with political parties or as advisers to MP’s, local authority members or candidates for political office.
- Exception in relation to family status
- Rules on discrimination covering family status do not apply to people married to, living with or related to another employee if there would be a reporting relationship between them or there is a risk of collusion between them to the detriment of the employer.
- Exception in relation to Armed Forces
- Rules on sex discrimination do not apply to active combat duties.
- Exception in relation to Regular Forces and Police
- Rules on religious or ethical belief discrimination do not apply to the Defence Forces or the Police.
- Exceptions in relation to disability
- Rules on discrimination covering disability do not apply if the position is such that the person could perform the duties of the position satisfactorily only with the aid of special services and facilities and it is not reasonable to provide those services or facilities; or the environment in which the duties of the position are to be performed or the nature of those duties, or of some of them, is such that the person could perform them only with a risk of harm to that person or others, including the risk of infecting others with an illness, and it is not reasonable to take that risk (provided that this exception will not apply if the employer could, without reasonable disruption, take reasonable measures to reduce the risk to a normal level).
To access the complete Act click here