Essential Legal Standards

This page summarises the legal responsibilities of employers regarding unlawful discrimination, and legal affirmative action in support of disadvantaged groups. It also outlines how these human rights and labour law obligations constitutionally rest upon the foundation of Te Tiriti o Waitangi. For a more comprehensive exploration of what Te Tiriti means for DEI, especially for Māori and Pasifika, click here.

Contents

  1. Te Tiriti framework >

  2. Unlawful discrimination, and legal affirmative action in Aotearoa New Zealand >

  3. International law and employment discrimination >

Te Tiriti framework

In Aotearoa New Zealand, Te Tiriti o Waitangi provides a constitutional foundation upon which the Crown’s human rights obligations rest. Te Tiriti is the founding document of Aotearoa New Zealand and established a relationship, akin to partnership, between the Crown and Māori rangatira. It affirms the rights that Tangata Whenua had prior to 1840. 

Te Tiriti also gives tauiwi (non-Māori) and the Crown a set of rights and responsibilities that has enabled them to settle in Aotearoa New Zealand. Upholding te Tiriti and addressing the legacy of colonisation in Aotearoa New Zealand, including structural racism, will not only benefit Tangata Whenua but all tauiwi, including Pacific peoples.

More here on DEI and Te Tiriti o Waitangi.

Unlawful discrimination, and legal affirmative action in Aotearoa New Zealand

The Human Rights Act 1993 and the Employment Relations Act 2000 protect people from unlawful discrimination in their employment, based on the following prohibited grounds:

  • Sex, Marital status, Religious belief, Ethical belief, Colour, Race, Ethnic or national origins, Disability, Age, Political opinion, Employment status, Family status, and Sexual orientation.

This includes indirect discrimination, which occurs when what may seem like a neutral job condition has the effect of excluding a group of job applicants on one of the prohibited grounds of discrimination.

For example, in general, a policy banning tattoos is not unlawful. However, because certain forms of tattoo such as tā moko and tatau are closely associated with particular ethnic or racial groups, for whom they hold cultural significance this may constitute indirect discrimination.

Moreover, the Human Rights Act also supports measures to ensure equality, commonly known as ‘affirmative action, ‘positive discrimination’ or ‘special measures’ for Māori, Pasifika, and other protected groups, as supporting genuine equality of opportunity. It is not unlawful discrimination to have special DEI initiatives targeted at Māori and Pasifika, or for other disadvantaged groups.

Under the Human Rights Act, harassment of Māori and Pasifika employees on the grounds of their race or ethnic group is unlawful. This includes language, visual material or physical behaviour that:

  • Expresses hostility against them or brings them into contempt or ridicule because of their colour, race, or ethnic or national origins; and

  • Is hurtful or offensive to them (whether or not they make this known to the other person); and

  • Is significant enough to have a detrimental effect on them in the workplace, either because it is repeated behaviour, or is a single significant incident.

Employment discrimination is also unlawful under the Employment Relations Act (2000). This can be if employers do any of the following things based on one of the illegal grounds of discrimination such as ethnicity or gender:

  • Dismissing you or disadvantaging you in some way

  • Requiring you to resign or retire

  • Refusing you, or failing to offer you, the same conditions and benefits as other employees with similar qualifications and in similar circumstances, including:

    • Terms of employment

    • Conditions of work

    • Fringe benefits

    • Opportunities for training, promotion, or transfer

Click here to read Community Law: Discrimination at Work.

Employees can raise issues via:

  • The Human Rights Commission under the Human Rights Act. This goes to mediation in the first instance and can progress to the Human Rights Review Tribunal if it is not resolved at mediation. 

  • The Ministry for Business Innovation and Employment mediation service. If the issue is not resolved at mediation either party can apply to the Employment Relations Authority. 

Employment NZ has key resources that:

International law and employment discrimination

The Universal Declaration of Human Rights (UDHR), the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights and associated Optional Protocols (ICCPR) – collectively known as the International Bill of Human Rights – provide the framework for the other international human rights treaties that protect and affirm the rights of particular population groups, including in the workplace and labour market. 

The right to work, the right to equal pay for equal work and the right to a decent income and working conditions are rights enshrined in the UDHR (Article 23). The right to the enjoyment of just and favourable conditions of work, including fair wages and equal remuneration for work of equal value, and an adequate standard of living is recognised in Article 7 and Article 11 of the ICESCR. 

In addition, Aotearoa New Zealand has ratified several international conventions that protect the rights of ethnic minorities from discrimination in employment matters and promote equality of opportunity in employment. These include the:

  • ILO Discrimination (Employment and Occupation) Convention;

  • United Nations (UN) Convention on the Elimination of All Forms of Racial Discrimination;

  • UN Convention on the Elimination of All Forms of Discrimination against Women; and

  • UN Convention on the Rights of Persons with Disabilities.