9.05.2018

Discrimination in the workplace – here we go again!

Just a quick refresher on discrimination.

The recent article in the New Zealand Herald about a job applicant who was apparently denied the chance of a job interview due to her wearing a hijab provoked a feeling of déjà vu.  It is disappointing that yet again, this issue has arisen.  Surely, surely, employers know by now that discrimination on the basis of religious beliefs or ethnic or national origins is, in almost all circumstances, unlawful, and simply unacceptable?

The employer in question has apologised for the actions of its manager, and been at pains to point out that it does not condone discrimination in any way.  However, it is a little disturbing to think that there are some people in positions of responsibility who, apparently, aren’t aware of their obligations.

So, just a quick refresher on discrimination.

It is unlawful to discriminate on the basis of the prohibited grounds in the Human Rights Act 1993, including religious or ethical belief, or ethnic or national origins.  This applies in employment when:

  • Recruiting (including asking interview questions, advertising, and job application forms)
  • Employing (or refusing to do so)
  • Giving less favourable terms and conditions of employment or opportunities; for example, for promotion, training, etc
  • Terminating employment
  • Requiring retirement

There are limited exceptions in relation to national security, reasons of authenticity or privacy (for example, providing counselling on highly personal matters), domestic or live-in employment (like a nanny), and religious employment (it is reasonable to expect a Catholic priest to be Catholic).

With regard to an employee wearing items of religious, cultural or ethnic significance (a hijab for example, or a cross, or even tâ moko), it is generally unacceptable for an employer to prevent employees wearing or displaying items of genuine significance.   But there are exceptions.  Genuine safety considerations (for example, a swinging crucifix may be caught in a machine) may provide a lawful reason for an employer to ask an employee not to wear such an item at work.

Where there is a uniform or dress code requirement, the Human Rights Commission’s advice is to use common sense – if the uniform can be adjusted slightly to accommodate both the employer and the employee’s needs, this will obviously be preferable to a hard and fast rule prohibiting employees wearing items of significance.  This fits with the provision in the Human Rights Act 1993 which limits the use of exceptions and provides that employers need to adjust their activities to accommodate the employee’s ability to carry out the duties, so long as this does not unreasonably disrupt the employer’s business.   For example, many employers with a uniform will allow employees to wear cultural or religious items (hijab, turban, etc) in the company’s colours.

As with so many things (particularly in employment), common sense and communication is key.  Employers and employees should discuss the situation, and try to reach a mutually acceptable solution.

If you have any questions about your Human Rights obligations, or any other aspect of employment law, please give us a call.

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Contact the expert team at Hesketh Henry.
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