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employment

Discrimination in hiring: Age, gender, and race

Key Takeaway

New Zealand law prohibits discrimination in hiring based on characteristics like age, gender, and race. The Human Rights Act 1993 outlines these protections, making it unlawful for employers to discriminate during recruitment processes. The Employment Relations Act 2000 allows individuals to raise a personal grievance if they experience discrimination in employment.

Discrimination in Hiring: Age, Gender, and Race in New Zealand

New Zealand law prohibits discrimination – which means treating someone less favourably than another person in similar circumstances – during the hiring process based on certain protected characteristics, including age, gender, and race. These protections ensure that employment opportunities are based on merit and suitability for the role, rather than irrelevant personal attributes.

Key Legislation

The primary legislation governing discrimination in New Zealand is the Human Rights Act 1993 (HRA). This Act sets out the prohibited grounds of discrimination – specific characteristics identified by law that cannot be used as a basis for discrimination – and defines the areas where such discrimination is unlawful, including employment. The Employment Relations Act 2000 (ERA) also plays a role by providing a framework for addressing employment-related disputes, including claims of discrimination.

Prohibited Grounds of Discrimination in Hiring

The Human Rights Act 1993 specifies several prohibited grounds of discrimination. For hiring, the following are particularly relevant:

Age

Discrimination based on age is prohibited. This means that a person's age cannot be a factor in decisions related to hiring, promotion, or dismissal [Source: Human Rights Act 1993, s 21(1)(b)]. This protection applies to individuals of all ages.

Gender (Sex)

Discrimination on the basis of sex (gender) is unlawful. This includes pregnancy and childbirth, and sexual harassment [Source: Human Rights Act 1993, s 21(1)(a)]. Employers must not make hiring decisions based on an applicant's gender, perceived gender, or family status (e.g., whether they have children or plan to have them).

Race, Colour, and Ethnic or National Origin

Discrimination based on race, colour, or ethnic or national origin is strictly prohibited. This includes ancestry or place of origin [Source: Human Rights Act 1993, s 21(1)(c), (d)]. Employers cannot favour or disadvantage an applicant based on these characteristics.

Unlawful Discrimination in Employment Under the HRA

The HRA specifically makes discrimination unlawful in various aspects of employment. During the hiring process, this includes:

  • Advertising: It is unlawful to publish an advertisement that indicates an intention to discriminate on any of the prohibited grounds [Source: Human Rights Act 1993, s 28]. For example, an advertisement stating a preference for applicants under 30 years old would likely be unlawful.
  • Application Forms and Interviews: It is unlawful for an employer to use application forms or ask questions during interviews that seek information about prohibited grounds, unless the information is genuinely required for the job or to monitor compliance with equal opportunities [Source: Human Rights Act 1993, s 29]. For example, asking a female applicant if she plans to have children is generally unlawful.
  • Offering Employment: It is unlawful to refuse or omit to offer a person employment, or to offer them employment on less favourable terms, due to a prohibited ground [Source: Human Rights Act 1993, s 22(1)(a), s 22(1)(b)].

Exceptions to Discrimination

There are very limited circumstances where discrimination might be permitted, known as genuine occupational qualifications. This is a rare exception where a particular characteristic is essential for the effective performance of the job [Source: Human Rights Act 1993, s 36]. For example, an employer may specify a particular gender for an actor in a specific role where gender is a fundamental part of the character being portrayed. Such exceptions are interpreted narrowly.

Discrimination as a Personal Grievance Under the ERA

If an individual believes they have been discriminated against in an employment context, including during the hiring process, they may be able to raise a personal grievance. A personal grievance is a claim made by an employee against their employer for an alleged wrong, such as unjustifiable dismissal, disadvantage, or discrimination [Source: Employment Relations Act 2000, s 103]. Discrimination is explicitly listed as a ground for a personal grievance [Source: Employment Relations Act 2000, s 104(1)(d)].

To raise a personal grievance, an employee typically has 90 days from the date the action occurred or came to their notice [Source: Employment Relations Act 2000, s 114]. The process usually involves:

  1. Contacting the employer.
  2. Mediation facilitated by the Ministry of Business, Innovation and Employment (MBIE).
  3. If mediation fails, the case may proceed to the Employment Relations Authority or Employment Court.

Obligations of Employers

Employers in New Zealand have an obligation to ensure their hiring processes are free from discrimination. This includes:

  • Drafting job advertisements and descriptions that are non-discriminatory.
  • Developing fair and objective selection criteria.
  • Training interviewers on unlawful questions and biased decision-making.
  • Making hiring decisions based on skills, experience, and ability to perform the job, rather than prohibited grounds.

Rights of Applicants and Employees

Applicants and employees have the right to be free from discrimination throughout the hiring process and during their employment. If they believe they have experienced discrimination, they have avenues to seek redress under the Human Rights Act 1993 or the Employment Relations Act 2000.

When to Seek Independent Legal Advice

Individuals who believe they have experienced discrimination in hiring, or employers seeking to ensure their recruitment practices comply with the law, may wish to seek independent legal advice. Information and assistance can be obtained from official bodies like the Human Rights Commission, Employment New Zealand, or by contacting Community Law Centres for free advice [https://communitylaw.org.nz/].

Key Resources