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Exceptions to unlawful discrimination

There are a number of exceptions where it is lawful to treat people differently on the basis of a prohibited ground of discrimination.

In some circumstances, different treatment of employees on one of the prohibited grounds of discrimination is lawful. In some of these situations people may need to provide evidence of, for example, their religious belief or their sex.

An exception to unlawful discrimination won’t apply if only some of the duties of the job fall within an exception and it wouldn’t unreasonably disrupt the employer’s business for the employer to give those duties to another employee.

The following are areas where exceptions may apply:

Different treatment if a person applied for a job or were 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.
  • Different treatment based on sex, religious or ethical belief, disability, age, political opinion, or sexual orientation for domestic employment in a private household eg au pair.
  • Different treatment based on sex if the position needs to be held by one sex to maintain reasonable standards of privacy (eg lingerie fitter), or
  • Different treatment based on 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 isn’t reasonable for the employer to have to provide separate sleeping accommodation or premises for each sex.
  • Different treatment based on 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 doing that job usually has to, or can, live in premises provided by the employer as a term or condition of their employment, the employer doesn’t have to offer that term or condition of employment in relation to a particular sex or marital status if in all the circumstances it isn’t 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.
  • Different treatment based on religious or ethical belief:
    • under section 65 of the Private Schools Conditional Integration Act 1975, or
    • if the duties of the position are, more of 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 don’t need to make changes which 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 isn’t 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 isn’t 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 eg safety.
  • Different treatment by paying a person aged 20 or under at a lower rate than someone else in more or less the same circumstances, because they haven’t reached a particular age yet. (Preferential treatment based on age in this situation is allowed.
  • Different treatment on the ground of 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.
  • A superannuation scheme:
    • 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 eg 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, or, 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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