Discrimination relating to employment
It is discrimination in employment if an employer:
- won’t or doesn’t give an employee the same terms of employment, work conditions, fringe benefits, 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 (eg by creating unfavourable working conditions in order to make the person resign), and
- the reason is directly or indirectly a prohibited ground of discrimination.
There are some specific employment situations which are exceptions and in these situations it is not unlawful to make employment-related decisions on the basis of a prohibited ground. For example, in some situations it is legal to employ only a woman for a particular position.
Prohibited grounds for discrimination
All people are protected from unlawful discrimination in their employment. This includes discrimination on the grounds of:
- race or colour
- ethnicity or national origins
- sex (including pregnancy or childbirth)
- sexual orientation
- religious or ethical belief
- marital or family status
- employment status
- political opinion
- being affected by family violence
- 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.
These grounds are in the Employment Relations Act 2000 and the Human Rights Act 1993 (apart from involvement in union activities).
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.
The ground of discrimination because of involvement in union activities is in the Employment Relations Act 2000. If the employee complains about discrimination on the basis of their union activities, and it is proved that the employer did take the action or inaction complained about, then it will be presumed that it was because of their union activities. You can find more information about union activities in Union membership is a choice.
What to do if you think you have been unlawfully discriminated against
If you believe an employer is discriminating against you on one or more of the prohibited grounds listed above, you should first talk with them to try and resolve the problem. If this is unsuccessful or not appropriate, there are other options for you to follow, depending on whether the issue came up 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 employee has a job as well as after 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 have a choice and can either:
- go to mediation and/or raise a personal grievance under the Employment Relations Act 2000, or
- make a complaint to the Human Rights Commission (external link) .
Discrimination issues under the Employment Relations Act 2000
- If discrimination happens in the employment relationship, the employee and employer should try to discuss the issue to resolve the problem. They can use a support person to help them, eg a union representative or lawyer. They also can contact us for more information on how to resolve the situation.
- If the problem can’t be resolved by the parties talking about it, they can use the free and confidential employment mediation service.
- If the issue is still not resolved a party can take their personal grievance to the Employment Relations Authority.
Discrimination issues under the Human Rights Act 1993
- The Human Rights Commission provides a free and confidential mediation service.
- If mediation doesn’t resolve the complaint, the employee can take the complaint to the Director of the Office of Human Rights Proceedings, Human Rights Review Tribunal.
- For more information contact the Human Rights Commission on 0800 4 YOUR RIGHTS (0800 496 877), email: firstname.lastname@example.org or on the Human Rights Commission (external link) website.
Human Rights Commission
- InfoLine phone: 0800 496 877
- Action and Resources on the Transgender Inquiry (external link)
- Getting a Job: A-Z Pre-Employment Guidelines [PDF 630KB, 54 pages] (external link)