Workplace discrimination is illegal in New Zealand under the Human Rights Act 1993 and the Employment Relations Act 2000. If you believe you have been discriminated against at work based on race, gender, age, disability, sexual orientation, or any other protected characteristic, you may have grounds to take action.
Proving discrimination, however, requires careful documentation and a structured approach. This guide outlines the steps you should take to gather evidence and seek justice.
Step 1: Identify and Understand the Type of Discrimination
Discrimination at work can take different forms, including:
Direct discrimination
Direct discrimination occurs when an individual or group is treated less favorably than others based on a protected characteristic (under the Human Rights Acts 1993) such as age, gender, race, disability, religion, or sexual orientation. It is an intentional act of unequal treatment.
Example: John applies for a promotion to the position of Regional Sales Director. He has over 10 years of experience in sales, and has consistently exceeded performance targets. However, the hiring manager decides not to offer him the promotion because he believes that ‘people from John’s age group tend to be less adaptable to new technology.’
Indirect discrimination
Indirect discrimination occurs when a policy, practice, or rule that applies to everyone has a disproportionate or negative impact on a group of people based on a protected characteristic (such as age, gender, race, disability, etc.), even if it is not intentionally discriminatory. It happens when a seemingly neutral practice or policy unintentionally disadvantages a particular group of people.
Example: Jane’s company requires all employees to work full-time hours between 9am to 5am with no flexibility for alternative work arrangements. As a mother of two young children, Jane is unable to comply with this schedule and is forced to reduce her hours or take unpaid leave, putting her at a disadvantage compared to other employees.
Harassment
Workplace harassment refers to any unwanted or offensive behavior that creates a hostile, intimidating, or uncomfortable work environment for an employee.
Harassment can be based on various factors such as race, gender, sexual orientation, disability, age, or other personal characteristics. It includes both physical and verbal behavior that negatively impacts an employee’s ability to perform their job or feel safe at work.
Example: Tom has been dealing with continuous harassment from his colleague, Mike. The behavior includes unwanted comments about Tom’s appearance, frequent teasing, physical intimidation.
Retaliation
Workplace retaliation occurs when an employer takes adverse action against an employee because the employee has engaged in a protected activity, such as filing a complaint, reporting misconduct (like harassment or discrimination), or participating in a legal investigation or action.
Retaliation typically involves discriminatory treatment that is intended to punish or discourage the employee from standing up for their rights.
Example: Sarah has been working at a construction firm for 5 years. After noticing that some safety protocols are being ignored on-site, she reports the issue to her manager. However, after Sarah makes the report, her manager starts assigning her fewer responsibilities and gives her a negative performance review, even though her work has been consistently excellent.
Step 2: Keep Detailed Records
Gather as much evidence as possible to support your claim. This includes:
Written records – Keep a diary detailing incidents of discrimination, including dates, times, locations, and people involved.
Emails and messages – Save discriminatory emails, texts, or messages that show bias or unfair treatment.
Performance reviews – Compare past and present performance reviews to identify unfair evaluations.
Witness statements – Colleagues who have witnessed discrimination can provide valuable testimony.
Step 3: Review Your Employment Contract and Workplace Policies
Check your employment agreement, workplace policies, and employee handbook for any provisions related to discrimination and complaints. Employers are required to have anti-discrimination and complaint procedures in place.
Step 4: Raise the Issue Internally
Before taking legal action, follow your company’s internal complaint process:
1. Speak to your manager or HR department – Explain the situation and provide evidence.
2. Lodge a formal complaint – If the issue is not resolved, submit a written complaint following company procedures.
3. Request mediation – Some workplaces offer mediation to resolve disputes amicably.
Step 5: Seek External Support
If internal complaints about workplace discrimination are unsuccessful or your employer fails to take action, external support is available to help protect your rights.
1. Employment New Zealand – Provides free advice on workplace rights, including discrimination. They also offer free mediation services.
2. Human Rights Commission – Handles discrimination complaints under the Human Rights Act.
3. Employment Relations Authority (ERA) – Investigates workplace discrimination under the Employment Relations Act.
4. An Employment Relations Specialist – Provides advice, guidance, and representation.
If your claim is successful, you may be entitled to:
Compensation for lost wages or emotional distress.
Reinstatement in your job.
Changes in workplace policies to prevent future discrimination.
Example Scenario: Racial Discrimination
James is a highly qualified global sales manager with 5 years of experience in the company. He has consistently met his sales targets, managed his team well, and received positive performance reviews.
However, when a promotion to Regional Sales Director becomes available, the position is offered to another employee, Mark, who is of European descent.
James, who is of Pacific Islander descent, learns from a colleague that the reason he was looked over was because the hiring manager, who is of European descent, believes that ‘clients in the region are more comfortable with people of European descent.’
James feels that his qualifications, performance, and experience were ignored due to his ethnicity, and that he was treated less favorably than his colleague Mark, who did not have the same work achievements or experience as him.
Why is this Discrimination?
Unequal Treatment Based on Race: James was passed over for the promotion because of his ethnicity, which is a clear case of racial discrimination.
Stereotyping: The hiring manager’s belief that clients prefer individuals of European descent is based on a racial stereotype, which is discriminatory and unfair.
Protected Characteristic: Race is a protected characteristic under the Human Rights Act 1993, making it illegal to discriminate against someone based on their race or ethnicity.
What James Can Do
File a Discrimination Complaint: James can lodge a formal complaint with the Human Rights Commission regarding racial discrimination in the promotion process.
Challenge the Decision: James can file a personal grievance with the Employment Relations Authority (ERA), asking for remedies such as reinstatement, compensation, or a change in workplace policies.
The Bottom Line
Proving workplace discrimination requires thorough documentation, internal reporting, and external legal action when necessary. If you believe you have been discriminated against, take action promptly and seek the appropriate support to protect your rights, and get compensated for your hard work.
Mahi Law can Help!
Our expert team will help you understand your employment rights, and pursue resolution (including compensation) through various channels, such as: Without prejudice negotiations, mediation, the Employment Relations Authority, or Employment Court if required.
We also work on a no-win, no-fee basis – if we win your case, your employer covers the costs.
Get in touch for a free consultation! You can fill out this form – or contact us at [email protected], or 0800 450 032.
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