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Office of Human Rights Proceedings
Part 2
Part 2 of the Human Rights Act covers discrimination in the following areas:
- Employment
- Partnerships
- Industrial and professional associations, qualifying bodies and vocational training bodies
- Access to places, vehicles and facilities
- Provision of goods and services
- Provision of land, housing and other accommodation
- Access to educational establishments
Part 2 also covers sexual harassment, racial harassment and victimisation.
Recent Part 2 HRA decisions
Haupini v SRCC Holdings Ltd – racial discrimination
Ms Haupini, who worked for a catering company, had a moko (a traditional Maori tattoo) on her forearm. She was asked to cover it for a client function and complained to the HRC of racial discrimination. The OHRP represented her in the Tribunal.
In its decision of September 2011, the Tribunal found that there was no direct discrimination because it considered the employer would have treated a non-Maori employee in the same way. It also found that there was no indirect discrimination on the evidence it heard.
Smith v Air New Zealand Ltd – disability discrimination
Valerie Smith suffers from a congenital condition affecting her lungs which means she needs extra oxygen when flying. Under Air New Zealand’s policy Ms Smith had to organise and pay for her own oxygen support on domestic flights and for oxygen supplied on international flights. She complained that this was disability discrimination. The OHRP represented Ms Smith in the Tribunal, High Court and Court of Appeal.
The Tribunal agreed that Ms Smith was discriminated against on the ground of disability. She was treated less favourably than other passengers in the provision of goods and services. However, it also found that Air New Zealand could not be reasonably expected to provide extra oxygen for passengers on international flights free of charge.
Ms Smith’s appeal to the High Court was dismissed. She appealed to the Court of Appeal, which found that although she was treated less favourably than other passengers, the airline’s actions were reasonable.
EN v KIC – sexual harassment at work
The plaintiff worked for many years in a small café and bakery business. She complained about sexual harassment by the new owner, which had caused her to resign from her job.
The Tribunal found in her favour. It said the case demonstrated “the dangers of running a business without any understanding of the provisions of the HRA relating to sexual harassment and with no insight whatsoever that some behaviours can be unwelcome to others no matter how innocent they may be thought by the perpetrator to be.” EN was awarded damages of $9,000 for financial loss and $10,000 for loss of dignity, humiliation and injury to her feelings. The defendants were ordered to attend an HRC-led training programme on sexual harassment in the workplace.
Lewis & Edwards v Talleys Fisheries Ltd - Gender discrimination in the fishing industry
Caitlin Lewis and Brent Edwards were a couple who applied for work at Talleys Fisheries in Motueka. Ms Lewis was employed as a fish trimmer, while Mr Edwards was employed as a fish filleter. She claimed that there was gender discrimination because Talleys appointed men to be filleters and women to be trimmers and it paid the filleters more.
The Tribunal agreed that Ms Lewis was allocated to be a trimmer because she was a woman, however it disagreed that filleters and trimmers were doing substantially the same work. It also found that Mr Edwards had been victimised because of his partner’s complaint to the HRC.
The case was appealed to the High Court. The High Court agreed with the Tribunal that Talleys allocated jobs on the basis of sex and that Mr Edwards had been victimised. It also found that filleters and trimmers were doing substantially the same work.
Settlements
Many Part 2 HRA cases are able to be settled before hearing. Settlements might include: an apology, payment of compensation and an agreement to attend HRA training provided by the HRC. Some examples of recent settlements are below.
Disability discrimination claim settles for $8,000
Laura Eitjes (who is blind) and uses a guide dog, Rua, booked accommodation in a North Island town. Ms Eitjes was told that her guide dog would have to remain outside, which meant that she could not stay at the accommodation. The OHRP agreed to provide representation to bring a disability discrimination claim.
The case was settled before the hearing, with an unreserved apology to the plaintiff, $8,000 in compensation and $1,500 in costs to the OHRP. The defendant’s identity stayed confidential under the terms of the settlement.
Ms Eitjes donated $5,000 of her compensation to the Royal New Zealand Foundation of the Blind’s guide dog services.
Gender discrimination claim settles for $6,500
A woman was refused a job as a car salesperson because she was female. The woman was qualified for the sales job advertised, but the car dealer told her it was only seeking male applicants. The OHRP agreed to provide representation to take a sex discrimination case to the Tribunal. The case settled before the hearing, with the car dealer providing a written apology, $6,500 compensation for emotional harm and $950 towards the OHRP’s costs.
