Employment Law: 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.

Despite 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.

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: In my view, the main purpose of s73 is to allow, and indeed encourage, the formulation of programmes to alleviate particular inequalities until these have been rectified by the operation of the Act’s general and broader policies.

The Bill of Rights Act contains a similar clause, under section 19(2), which states:

Measures taken in good faith for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination that is unlawful by virtue of Part 2 of the Human Rights Act 1993 do not constitute discrimination.

Positive discrimination in practice

An example of ‘special measures’ being used in practice is the University of Otago’s Mirror on Society Selection Policy. The policy provides for students who fall within special categories to be given preferential entry into the University of Otago’s medical school, including Māori and Pasifika students. The University’s policy is intended to promote the advancement of some students through special measures, to ensure the health sector is more reflective of our society.

With respect to Māori and Pasifika students, the aim is to boost the number of Māori and Pasifika in the health workforce in the hopes of helping achieve better health outcomes for our Māori and Pasifika communities. This entry pathway has been scrutinised in the media recently following a proposal being placed before the University to cap the number of students entering medical school through this pathway. However, it remains a live example of positive discrimination in Aotearoa.

The Human Rights Commission has published the Guidelines on Measures to Ensure Equality.

• Special measures are only one part of a tool kit, and inequality should be overcome using universal programmes rather than relying solely on special measures.

• Special measures may in some cases be required rather than merely permitted.

• The measure must be necessary to address disadvantage or ensure equality.

• The measure must be carried out in good faith.

• The measure must address the actual disadvantage of the group targeted, and there must be a demonstrable link between the measure and what it seeks to achieve.

• The impact on those the measure does not apply to should be considered.

• The measure should be proportionate to the disadvantage, and the least intrusive method should be favoured.

• The measure should be temporary. 1

New Zealand’s legal system provides strong grounds for protection against discrimination. Equally, the law recognises the need for forms of positive discrimination in order to truly achieve equality. To this end, the Human Rights Commission has confirmed that:

Ensuring that people enjoy rights equally will not always involve treating all people the same. To achieve genuine equality it may be necessary to treat people differently, if treating them the same will simply perpetuate existing differences. The point of special measures is to ensure equal outcomes rather than simply equal treatment. 2

Implementing positive discrimination or special measures in a workplace may help in achieving fair and equal treatment of employees. However, any special measures taken will need to be carefully considered, and employers will want to be sure that they can justify how the measures taken will help certain groups or individuals in achieving equality.

Jack Rainbow, Ngāti Tūwharetoa, Te Arawa (Tapuika), is a solicitor at Dundas Street Employment Lawyers. He provides legal advice to both public and private sector clients, including in relation disciplinary processes, investigations and dispute resolution. Jack also volunteers at Community Law and previously worked at a law firm specialising in Māori legal issues, particularly Waitangi Tribunal claims.