Posted on: Oct 26, 2012
Question: I applied for a management position with a publishing firm. X and I were short listed for the position. I know X personally. We are both single but I have day-to-day care of a young child. X got the job. I asked a friend who works for the firm why I had missed out on the job. She said that she had been told that the manager thought we were both good candidates but that X got the job because he was not “hamstrung” by a child. I think the employer behaved unfairly towards me. Is there anything I can do about it?
Answer: The manager appears to have discriminated against you on the ground of your family status which under the Human Rights Act 1993 (HRA), sections 21 and 22(1)(a), is a prohibited ground of discrimination. Discrimination in employment on the ground of family status is unlawful. Family status is defined as (HRA section 21(1)(l):
- having responsibility for part-time or full-time care of children or other dependants
- having no responsibility for the care of children or other dependants
- being married or being in a civil union or a de facto relationship, or
- being a relative (which includes a blood relative, dependent person or member of the household) of a particular person.
Section 22(1)(a) of the HRA provides that where an applicant for employment, or an employee, is qualified for work of any description, it shall be unlawful for an employer or any representative of an employer to refuse, or omit, to employ the applicant on work of that description which is available by reason of a prohibited ground of discrimination.
Making a complaint
Any person can make a complaint to the Human Rights Commission that he or she has been the subject of unlawful discrimination. Complaints are received by an information adviser employed by the Commission.
When a complaint is made, the information adviser will listen to the individual, gather information from any persons it thinks fit, and provide further information if needed. The information adviser will also contact the other party and seek a resolution to the problem or agreement on the next step. If the matter cannot be resolved and the complainant requests it, the complaint will be passed on to the Commission’s duty mediators, who will contact the parties within 24 hours.
The duty mediator mediates between the two parties at a dispute resolution meeting, held either by telephone, by correspondence or in person. The meeting is strictly confidential and complainants are protected from victimisation (eg unfair treatment by an employer because he or she has made a complaint). Matters may be settled by an apology, an agreement not to discriminate on those grounds in the future, and/or compensation.
If the matter is not settled by a duty mediator, the complainant can inform the Commission that he or she wishes to proceed with the matter (HRA, section 80(1)).
The Commission can decline to take further action on two grounds:
1. If the actions which led to the complaint occurred more than 12 months before the complaint was received by the Commission, or
2. If, in the Commission’s opinion (HRA, sections 80(2) and (3)):
- the subject matter of the complaint is trivial
- the complaint is frivolous or vexatious or is not made in good faith, or
- given the circumstances of the case, it is not necessary to take further action.
If the complaint is not resolved at a dispute resolution meeting or by the Commission, the complainant may refer a complaint to the Director of the Office of Human Rights Proceedings (which is independent of the Commission). The Director will decide whether, and to what extent, he or she will represent the complainant in proceedings before the Human Rights Review Tribunal (HRA, section 84(1)).
If the Director elects not to take the complaint to the Tribunal, the complainant can take the matter to the Human Rights Review Tribunal at his or her own cost. Alternatively, the Director may refer the complaint back to the Commission (HRA, section 90(1)(b)). The Commission may then require the parties to attend a dispute resolution meeting (HRA, section 84(4)).
In McDonnell Douglas Corp v Green 411 US 792 (1973) the US Supreme Court developed a four-step process by which to analyse whether a case of direct discrimination has been established (the approach was endorsed in New Zealand by the Complaints Review Tribunal: Wheen v Real Estate Agents Licensing Board CRT 21/94, 26 May 1995).
The Court stated that a prima facie case of discrimination will be established if the complainant shows:
(a) membership of a protected group (for example, a female employee or job applicant)
(b) that she either is qualified for the job sought or is performing the job satisfactorily
(c) despite these qualifications she suffers an adverse employment action (for example, not being appointed), and
(d) a similarly situated employee who is not a member of the protected group does not suffer the adverse action (for example, a similarly qualified man is appointed).
It said once the complainant has established the above factors it is up to the employer to show that it had a non-discriminatory reason for taking the action complained of.
It appears that you can establish a prima facie case of discrimination but face the problem that the manager may produce another reason for choosing X.
In Proceedings Commissioner v Howell (1993) 4 NZELC (digest) 98,210a;  2 ERNZ 130 the complainant, a part-time employee at a hotel, was refused the position of hotel manager because she was a woman with a child. The Equal Opportunities Tribunal found that her employer had discriminated against her because of her sex. A man with a child was appointed to the position. The complainant was awarded compensation of six months’ projected salary less a significant deduction for child-minding costs. A total of $17,388 was awarded.
This article, and any information contained on our website is necessarily brief and general in nature, and should not be substituted for professional advice. You should always seek professional advice before taking any action in relation to the matters addressed.