Employer's guide to discrimination in the workplace



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Workplace discrimination is when an employee is treated unfairly, based on race, age, gender, or disability.
New Zealand Employment and HR
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Workplace discrimination refers to unfair treatment based on factors such as gender, ethnicity, age, or disability. This type of discrimination violates human rights and undermines workplace equality. Your workplace must have the correct policies and processes in place for managing workplace discrimination. This article provides you, an employer, with a guide to workplace discrimination, including what constitutes workplace discrimination and general employee complaint processes.

What is Discrimination in the Workplace?

Employment discrimination occurs when you, as an employer, do any of the following:

  • Refuse or fail to provide your employee with equal terms of employment. This may relate to working conditions, benefits, training opportunities, promotion prospects, or job transfers.
  • Terminate an employee or take action that adversely affects their employment, job performance, or job satisfaction. This must occur without treating other employees in a similar fashion who are engaged in comparable work.
  • Force an employee into retirement or induce their resignation. You may do this by creating unfavourable working conditions to compel resignation. Your motivation for doing so, must be directly or indirectly related to a prohibited basis of discrimination.

That said, certain exceptions to workplace discrimination laws apply within specific employment scenarios. You can make decisions based on prohibited grounds, without violating the law, in these circumstances.

Under the law, there are numerous prohibited grounds of discrimination. These relate to your treatment of your employees. You cannot discriminate against any employee in your organisation on the ground or grounds of:

  • race or colour;
  • age;
  • religious or ethical belief;
  • marital or family status;
  • employment status;
  • ethnicity or national origins;
  • sex/gender;
  • sexual orientation;
  • disability;
  • political opinion;
  • being affected by family violence; or
  • involvement in union activities, including claiming or helping others to claim a benefit under an employment agreement, or taking or intending to take employment relations education leave.

When Can Workplace Discrimination Occur?

Discrimination Before Employment

A candidate for a position you are looking to fill may raise a complaint that you have discriminated against them. This discrimination may have occurred during the position advertisement, application or interview stage. This person has grounds under the Human Rights Act 1993 (the 'HRA') to bring a workplace discrimination action. Crucially, this also applies to any volunteers or independent contractors.

Discrimination During Employment

If your employee alleges that they have been discriminated against during the course of their employment, they have two options:

  • make a complaint to the Human Rights Commission; or
  • raise a personal grievance under the Employment Relations Act 2000 (the 'ERA') and attend mediation.

However, before the matter progresses to this stage, you should, if possible, discuss with your employee how to resolve the issue. You should allow for your employee to bring a support person, such as a family member or a lawyer.

How Can Employees Raise Workplace Discrimination Concerns?

Persons who believe they have been discriminated against, under any of the above bases, can bring their matter under the HRA or the ERA. The processes under both of these pieces of legislation are similar. If your employee has raised a grievance, via one legislative instrument, they cannot bring the same claim under a separate legislative instrument. This is if their first claim fails.

Human Rights Act 1993 (HRA)

If your employee raises a complaint under the HRA, then the Human Rights Commission will direct mediation. This is a free and confidential service provided by the Human Rights Commission. It is possible that mediation does not resolve the issue. In these situations, your employee can take the complaint to the Human Rights Review Tribunal.

To raise a complaint under the HRA, your employee must bring the claim within 12 months. However, the HRA tends to be a longer process than going through the ERA. However, your employee may obtain greater compensation by relying on this avenue.

Employment Relations Act 2000 (ERA)

It is quite possible that you and your employee, amongst yourselves, may not be able to resolve the issue. Likewise, you both may prefer an external party to manage and resolve the issue. The Minister of Business, Innovation and Employment offers a free and confidential mediation service. If mediation is unsuccessful, then your employee may choose to raise the grievance with the Employment Relations Authority.

That said, your employee may go directly to the Employment Relations Authority. However, the Employment Relations Authority will likely direct both you and your employee to mediation. This is premised upon you both not having already attempted mediation.

Case Study on Discrimination in the Workplace – Gender/Sex Discrimination

In the case of Triford v Var Haulaways Limited, a female employee wanted to be promoted to the position of "Transport Supervisor". The employer stated that she would not be considered for the position. Her employer stated that the role was more male-orientated and required experience that men were more likely to have. The Employment Court found that this was considered discrimination. The Court determined the employee was discriminated against based on sex.

Key Takeaways

Workplace discrimination occurs when an employee is treated unfairly based on different characteristics such as race, age, gender, or disability. Crucially, under the law, job applicants can also bring a claim for discrimination during the hiring process. Employees can address discrimination by lodging complaints under the Human Rights Act 1993 or raising a grievance under the Employment Relations Act 2000.

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