The law protects all people from unlawful discrimination in the workplace.

What is unlawful discrimination?

Unlawful discrimination is when a person is treated differently and less fairly than others because of their race, sex, age, religion or a prohibited ground.

Discrimination relating to employment

In employment, discrimination is unlawful when — on the basis of a ‘prohibited ground’ — an employer, directly or indirectly:

  • does not give an employee the same terms of employment, work conditions, fringe benefits, and opportunities for training, promotion and transfer as other employees:
    • with more or less the same qualifications, experience or skills, and
    • who are employed in the same or substantially similar circumstances, or
  • dismisses an employee or does something that has a negative effect on their employment, job performance or job satisfaction when they are not treating other employees doing the same type of work in the same way, or
  • retires an employee, or makes the employee retire or resign — for example, by creating unfavourable working conditions to make the person resign.

Exceptions to the rule

There are some specific employment situations where it is lawful to make employment-related decisions on the basis of a prohibited ground.

Prohibited grounds for discrimination

All people are protected from unlawful discrimination in their employment on the grounds of:

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

The ‘prohibited grounds’ for discrimination (when discrimination is considered unlawful) are set out in the Human Rights Act 1993 and the Employment Relations Act 2000.

Human Rights Act 1993 - New Zealand Legislation(external link)

Employment Relations Act 2000 - New Zealand Legislation(external link)

Under the Human Rights Act 1993 it is unlawful to ask questions of or about a job applicant that indicate an intention to discriminate on one of the grounds covered by the Act.

If a person thinks that an employer has acted in this way, they may make a complaint under the Human Rights Act 1993.

Making a complaint – Human Rights Commission(external link)

Other types of unlawful discrimination:

  • racial harassment
  • sexual harassment
  • indirect discrimination
  • victimisation
  • adverse treatment of employees affected by family violence.

If you think you have been unlawfully discriminated against

If you believe an employer is unlawfully discriminating against you, you should first talk with them and try to resolve the problem. You can have a support person to help you, for example, a union representative or member of your whānau.

If this is unsuccessful or not appropriate, there are other options available to you depending on whether the issue arose before or during employment.

If the discrimination was before employment

The Human Rights Act 1993 applies to discrimination in most aspects of employment including job advertisements, application forms, interviews and job offers before the person has a job, as well as once the person has the job. It also applies to unpaid workers and independent contractors.

If the discrimination was during employment

If an employee thinks they have been unlawfully discriminated against during their employment they can:

  • seek support from Employment Mediation Services — this might include going to
  • raise a personal grievance, or
  • make a complaint to the Human Rights Commission Te Kāhui Tika Tangata.

How to resolve problems

More information:

Diversity Works New Zealand(external link)

Protections for workers - WorkSafe(external link)

Discrimination against transgender people

A person’s gender identity and expression is a part of who they are, not a lifestyle choice. Transgender people are protected from discrimination in employment.

Employment protections for transgender people

Prohibition of discrimination on the grounds of sex under the Human Rights Act 1993 is considered to include gender identity. Transgender people may be protected under the Act from unlawful discrimination on the grounds of gender identity in the workplace, but this has not been tested in New Zealand courts.

Under the Employment Relations Act 2000, employees and employers have a duty to treat each other in good faith. This includes an obligation to communicate openly and try to deal with any issues that affect their employment relationship.

Good faith

Dismissal or refusal to hire

A transgender person is not being dishonest if they choose not to disclose their gender identity. They are not required to do so and may not be sharing personal information because they fear being discriminated against.

An employer cannot, on the grounds that a person is transgender:

  • refuse to hire them because ‘they won’t fit in’
  • move them away from frontline work (unless they ask or agree)
  • dismiss them
  • pressure them to resign by changing their working conditions.

Any of the situations above may provide grounds for a complaint of discrimination on the basis of sex under the Human Rights Act 2003 or, in the case of an employee, a personal grievance under the Employment Relations Act 2000 (including for a new employee on a trial period of up to 90 days).

Personal grievances

In some specific employment situations, an employer can lawfully treat job applicants or employees differently on the basis of sex, for example, by having men-only and women-only positions. Where treating people differently on the basis of sex is lawful, the employer should treat a trans woman (male to female) the same as other women, and a trans man (female to male) the same as other men.

More information

Human Rights Commission Te Kāhui Tika Tangata:

Infoline: 0800 496 877

Inquiry into discrimination experienced by transgender people – Te Kāhui Tika Tangata Human Rights Commission(external link)

Employment New Zealand – Cases of interest:

Hemmingson v Swan t/a Barker’s Groom Room [July 2016] NZERA Auckland

Exceptions to unlawful discrimination

There are some exceptions to the prohibited grounds for discrimination in employment, which allow people in certain work situations to be treated differently.

An exception to the prohibited grounds for discrimination will not apply if only some of the duties of the job fall within an exception and it would not unreasonably disrupt the employer’s business for those duties to be given to another employee.

Areas where exceptions may apply

Different treatment if a person has applied for a job, or is employed — or on — a ship or aircraft not in or from New Zealand.

Different treatment based on:

  • religious or ethical belief
  • political opinion
  • disability
  • family status
  • national origin of the person, or a relative, for work involving national security

if secret or top secret security clearance is needed, and the person is under 20 years.

Different treatment based on sex, religious or ethical belief, or age if:

  • the work is performed wholly or mainly outside New Zealand, and
  • this work is ordinarily carried out only by a person of a particular sex or religious or ethical belief, or particular age group, because of the laws, customs, or practices of the country the work is in.

Different treatment based on:

  • sex or age if being a particular sex or age is a genuine occupational qualification for the position or employment for reasons of authenticity
  • sex, religious or ethical belief, disability, age, political opinion, or sexual orientation for domestic employment in a private household — for example, au pair
  • sex if the position needs to be held by one sex to maintain reasonable standards of privacy, for example, lingerie fitter, or
  • sex in situations where the nature or location of the job means the employee needs to live in property provided by the employer and it is not reasonable for the employer to have to provide separate sleeping accommodation or premises for each sex
  • sex, race, ethnic or national origins, or sexual orientation, if the job is as a counsellor on highly personal matters such as sexual matters or violence prevention.

If an employee usually has to, or can, live in premises provided by the employer as a term or condition of their employment, the employer does not have to offer a term or condition of employment in relation to a particular sex or marital status if, in all the circumstances, it is not reasonably practicable.

Different treatment based on:

  • sex where the job is for the purposes of an organised religion and its doctrines, rules or established customs limit the job to one sex
  • religious or ethical belief:
    • under section 65 of the Private Schools Conditional Integration Act 1975, or
    • if the duties of the position are, more or less, the same as those of a clergyman, priest, pastor, official, or teacher among people with that belief, or involve the promoting of that belief, or are those of a teacher in a private school, or consist of acting as a social worker on behalf of an organisation whose members comprise followers of that belief.

If a religious or ethical belief makes its followers follow a particular practice, an employer must accommodate this as long they do not need to make changes that unreasonably disrupt the employer’s activities.

Different treatment based on disability:

  • if the person could only do the job satisfactorily with the help of special services or facilities and it is not reasonable for the employer to have to provide them, or
  • if the person could only do the job with a risk of harming themselves or others, including the risk of infecting others with an illness, and it is not reasonable to take that risk (unless the employer could take reasonable measures to reduce the risk to a normal level without unreasonable disruption), and
  • unless the terms of employment or conditions of work are set or varied after taking into account:
    • any special limitations that the person’s disability puts on their capacity to carry out the work, and
    • any special services or facilities that are provided to enable or facilitate the carrying out of the work.

Different treatment:

  • in relation to any job where being of a particular age or age group is a genuine qualification for any reason, including safety
  • by paying a person aged 20 or under at a lower rate than someone else in more or less the same circumstances because they have not reached a particular age yet. (Preferential treatment based on age in this situation is allowed.)

Different treatment based on:

  • age or disability in relation to any condition in, or requirement of, a superannuation scheme in existence at the commencement of the Human Rights Act 1993 in relation to someone who was a member of the scheme at the commencement of this Act or became a member of the scheme before 1 January 1996.

Different benefits:

  • for members of each sex on the basis of the same contributions, or the same benefits for members of each sex on the basis of different contributions, if the treatment is based on actuarial or statistical data, relating to life-expectancy, accidents, or sickness which it is reasonable to rely on and is reasonable having regard to the applicability of the data, and of any other relevant factors, to the particular circumstances.

Different treatment for schemes:

  • providing or requiring different contributions or benefits for members by reason of the disability or age of those members, if the different treatment is based on reasonable actuarial or statistical data, reputable medical or actuarial advice or opinion — for example, relating to life-expectancy, accidents, or sickness which it reasonable to rely on in the particular circumstances
  • needing applicants for membership to be under a maximum age, or
  • letting members make increased or reduced contributions, or
  • specifying an age of eligibility for each benefit provided for members, or
  • making people who became members of the scheme on or after 1 January 1995 leave the scheme when they are at the age where people usually get national superannuation (subject to section 183 of the Financial Markets Conduct Act 2013), or
  • providing benefits on the death or disability of members that decrease in value as their age increases, or
  • providing benefits for members of the scheme that are different according to their period of membership and, in the case of a superannuation scheme provided by an employer, of any scheme to which the employer has paid contributions on behalf of the employee.

Different treatment based on political opinion, if the job is:

  • a political adviser (or secretary) to a member of Parliament, or
  • a political adviser to a member of a local authority, or
  • a political adviser to a candidate seeking election to the House of Representatives or to a local authority within the meaning of the Local Electoral Act 2001, or
  • a member of the staff of a political party.

Different treatment by an employer on the employment, or restricting the employment, of a person who is a relative of, married to, in a civil union or in a de facto relationship with another employee if there would be a reporting relationship between them, or a risk of collusion between them to the detriment of the employer.

Different treatment relating to the discharge or release of a member of the regular forces under section 57A of the Defence Act 1990.

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