EMPLOYMENT LAW UPDATE JACK RAINBOW
The role of positive
discrimination in achieving equality The strength of Aotearoa’s society comes from its diversity and inclusiveness, in all its unique forms. Whether it is our different cultures, ethnicities, sexual orientation or religious pluralities, New Zealanders have a broad base of lived experiences that make our communities and workplaces stronger. Jack Rainbow, from Dundas Street Employment Lawyers, asks if discrimination can be used positively to help in achieving equality.
D
espite our diversity, not all New Zealanders are free from discrimination, nor do they have access to the same opportunities.
Protections from discrimination
New Zealand has two important pieces of anti-discrimination legislation: the Human Rights Act 1993 and the New Zealand Bill of Rights Act 1990. These are designed to prevent discrimination on several specified grounds, including on the basis of sex, race, ethnicity, religion, disability and sexual orientation.
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HUMAN RESOURCES
SUMMER 2020
The Human Rights Act prohibits discrimination in areas such as employment, education and housing, among others, in both the public and private sectors. This prevents employers, landlords and businesses from refusing employment, tenancy or other services on the basis of one of the specified grounds. The Bill of Rights Act on the other hand only applies to acts done by any of the three branches of government (the legislature, executive and judiciary) or any person or body acting in the performance of any public function, power or duty. The Bill of Rights Act outlines protections for human rights, one of which is the right to freedom from discrimination. In theory, this means the government cannot pass legislation or act in a way that would unfairly discriminate against an individual or group of individuals.
What about positive discrimination?
In New Zealand, ‘positive discrimination’ is recognised as a legitimate means of achieving equality. Positive discrimination is also sometimes referred to as affirmative action, preferential treatment or special measures.
Under the Human Rights Act, section 22 prohibits refusing employment, terminating employment or offering an employee less favourable terms and conditions of employment, by reason of one of the specified grounds of discrimination. However, the Act also provides an exception to this under section 73, where the action is taken (or not taken): a. in good faith; and b. for the purpose of assisting or advancing persons or groups of persons. The people referred to in section 73 must be: a. people against whom discrimination is unlawful under the Act; and b.
the people who need, or may reasonably be supposed to need, assistance or advancement in order to achieve an equal place with other members of the community.
The purpose of section 73 of the Human Rights Act was considered in Coburn v Human Rights Commission [1994] 3 NZLR 323, which related to the proposed amendment of a superannuation scheme. The Court stated in relation to section 73:
