Workplace Discrimination

While media focus recently has been on the prevalence of bullying and harassment claims in workplaces, discrimination remains relatively without attention. However, claims and complaints are on the rise. It is important that employers understand their obligations in this area, are proactive in meeting these responsibilities, and take action where an issue of discrimination arises.

Employees can choose to bring a discrimination claim in either the Human Rights jurisdiction or the employment jurisdiction. Recent remedies awarded by the Human Rights Review Tribunal (HRRT) at a significantly higher level than the Employment Relations Act may see this avenue increasingly used in the future. However, delays in the HRRT due to less resourcing is likely to influence this election.

What is workplace discrimination?

Workplace discrimination is treating an employee differently, to the employee’s disadvantage, on the basis of a number of prohibited grounds which are outlined in the Human Rights Act 1993 and the Employment Relations Act 2000. The prohibited grounds include age, race or colour, sex, sexual orientation, disability, religious or ethical belief and marital status. Prohibited grounds also include refusal to do work on the grounds of health and safety, and union involvement.

It is discrimination in employment if an employer:

• won’t or doesn’t give an employee the same terms of employment, work conditions, fringe benefits, opportunities for training, promotion and transfer as other employees: with more or less the same qualifications, experience, or skills; and who are employed in the same or substantially similar circumstances; or
• dismisses an employee or does something that has a negative effect on their employment, job performance or job satisfaction when they are not treating other employees doing the same type of work in the same way; or
• retires an employee or makes the employee retire or resign (e.g. by creating unfavourable working conditions in order to make the person resign); and
• the reason is directly or indirectly a prohibited ground of discrimination.

In a claim for discrimination, the critical assessment is whether one of the prohibited grounds was material to the way in which an employee was treated.

Discrimination can occur: directly, where an employee is treated less favourably due to one of the prohibited grounds; or indirectly, where one of the prohibited grounds is applied to a group the employee belongs to, therefore disadvantaging the employee and others in that group.

There are certain circumstances in which an employer can lawfully discriminate, where a requirement is a genuine occupational qualification, such as a specification based on gender or age. For example, a female employee may be reasonably required to model female fashion. The employer has the obligation to prove that the requirement is genuine, and that they have accommodated employees’ needs and differences, unless this is not reasonably possible.

Employers should be taking proactive steps to ensure that policies are in place regarding diversity and inclusion, staff are educated to avoid discrimination, and that measures to avoid discrimination are being actively monitored and reported on, to ensure that these are effective. Where employers receive a complaint of discrimination, these should be addressed quickly, fully, and fairly.