A recent New Zealand human rights case shows how businesses risk
unlawful discrimination claims from their job advertisements and
dealings with job applicants.
There are a number of prohibited grounds of discrimination
including (but not limited to) age, marital status, religious
belief, colour, race, disability and sex, which are referred to in
the Human Rights Act 1993. Unlawful discrimination can be direct or
indirect. Indirect discrimination can occur where a requirement or
condition is neutral on its face but has the effect of excluding a
person or group of people on one of the prohibited grounds.
Businesses cannot refuse or omit to employ someone based on an
unlawful ground of discrimination (unless a valid exception
exists). Prospective employers should take care that their job
advertisements, job application forms and job descriptions do not
indicate an intention otherwise.
In one New Zealand case, a job applicant was recently refused
employment for selling cars based on her gender. The woman had
previous sales experience and answered a job advertisement for a
In answering her application, the car dealer said that "on
this occasion we are seeking male applicants to complement the
dynamics of our existing sales teams." The car dealer stated
that the law "prevented" it from "advertising for
The matter settled for a written apology, $6500 for emotional
harm and a contribution towards costs of legal representation by
the Office of Human Rights Proceedings. This Office can provide
legal representation for some cases to the Human Rights Review
Another example of unlawful discrimination is a job
advertisement that specifies applicants should have "six
years' continuous experience." This could suggest that
women are being excluded as they are more likely to have had a
break in employment to care for children.
Overseas there are similar protections in place. Recently in
Denmark, it was held that an employer was not permitted to use
wording in its job advertisement that implied the job was targeted
at young applicants. In this case, the employer was seeking
applicants who were "newly graduated" or who had "a
few years' experience." A 57 year old job applicant
complained that it suggested the employer was seeking young
applicants but the employer argued that there was not necessarily a
connection between age and seniority.
The Denmark Board of Equal Treatment disagreed with the employer
and found that indirect discrimination had occurred. The criteria
of "newly graduated" and "a few years'
experience" suggested that the employer was seeking younger
applicants and this disadvantaged older applicants, which was
In New Zealand, direct or indirect discrimination can be lawful
where there is a justified reason for it. For instance, if the job
requires lifting certain weights then this could be a good reason
for employers to exclude people who can't perform those
Similarly, if an employer requires someone with a particular
length or type of previous experience then that will be fine as
long as the employer can justify its reasoning.
So what can businesses do to reduce their exposure to
discrimination claims based on a job advertisement? Before
advertising, businesses should carefully consider the requirements
of the job and draft a detailed job description which focuses on
the skills and experience they want - and why. The advertisement
can then be drafted on the basis of the job description, which
should be gender neutral.
Businesses should also take care when making any enquiry about a
job applicant, or responding to a job applicant, not to refuse a
job applicant based on a ground of unlawful discrimination.
If in doubt about whether a condition or requirement in the job
advertisement or position description is an unlawful ground of
discrimination, prospective employers should seek legal advice.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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