New Zealand: Take care when dealing with job applicants - avoiding allegations of unlawful discrimination

Last Updated: 13 August 2013
Article by Scott Wilson

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 car salesperson.

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 such specifics."

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 Tribunal.

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 unlawful.

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 tasks.

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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Scott Wilson
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