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Resolving discrimination and harassment

A guide to making and responding to a complaint under the Human Rights Act 1993

October 2010

Contents

1. Introduction

This guide has been prepared to assist people who are thinking about making a complaint of discrimination or harassment to the Human Rights Commission. It is also for people responding to a complaint that has been made.

The Human Rights Commission is an independent organisation that helps raise awareness about people’s rights and responsibilities. One of the Commission’s roles is to answer questions from the public about discrimination and harassment. It provides a free and confidential dispute resolution service to deal with complaints of unlawful discrimination.

The Commission responds to enquiries and complaints in an independent and impartial manner. It does not “take sides” or act on behalf of any party to a complaint.

This guide explains:

what constitutes unlawful discrimination and harassment under the Human Rights Act 1993
what is involved in making or responding to a complaint
how complaints are resolved by the Commission
possible outcomes to a complaint
other options for pursuing a complaint.

Making or responding to a complaint of discrimination or harassment is a serious matter. It is normal for people to feel uncertain about what lies ahead. That is why Commission staff ensure everyone knows exactly what is involved, so people can make informed decisions at each stage of the process.

The Human Rights Commission

The Human Rights Commission is an independent Crown entity, responsible for administering the Human Rights Act 1993.

The Human Rights Act sets out the Commission’s major functions, which are to:

advocate and promote respect for, and an understanding and appreciation of, human rights in New Zealand societyencourage the maintenance and
development of harmonious relationships between individuals and among the diverse groups in New Zealand society.

The Commission works to achieve these goals through:

education about human rights
production and distribution of human rights information and resources
inquiring into and reporting on human rights matters
resolving disputes relating to discrimination.

2. Understanding discrimination and harassment

The Human Rights Act protects people in New Zealand from unlawful discrimination. The Act also makes other behaviour against the law, including sexual harassment, racial harassment, causing racial disharmony and victimisation.

Under the Act, the Human Rights Commission is given the role of resolving complaints about unlawful discrimination that people make.

What is unlawful discrimination?

Discrimination happens when someone is treated unfairly or less favourably than another person in the same or similar circumstances. Not all discrimination is unlawful.

Under the Act, it is unlawful to discriminate against someone because of certain personal characteristics, such as their sex, age or race. These are called “prohibited grounds”. The full list of the prohibited grounds is on the Commission’s website and below.

To be unlawful, the discrimination must happen in one of the ”areas” of public life set out in the Act, such as employment, education or government activity. The full list of areas is on the Commission’s website and below. A person must be disadvantaged because of the discrimination.

The Act sets out a range of specific circumstances where discrimination is notThese are known as exceptions or justification and allow a practice to happen that would normally be discriminatory under the Act. In simple terms, the following formula can help determine whether an activity or a practice amounts to unlawful discrimination:

Ground + area + disadvantage + absence of exception or justification = unlawful discrimination

For discrimination to be unlawful, each of these components will be present. An example is: the ground of age + the area of employment + the disadvantage of not getting a job + the absence of any exception covered in the Act.

A 52-year-old man attended a job interview. He was well qualified for the position but was told after the interview that he had not been successful with his application. The next week, he noticed the job readvertised in the newspaper. It now said that the successful applicant would be ‘a young person able to relate to the company’s vibrant and contemporary market.’

What is indirect discrimination?

The Human Rights Act protects people from indirect discrimination. The same prohibited grounds apply to direct and indirect discrimination as does the consideration of a particular exception or justification.

Indirect discrimination occurs when an action or policy that appears to treat everyone the same actually discriminates against people because of a particular characteristic, such as their sex, age or race.

For example: if the only entrance to a shop is by climbing the stairs, that indirectly discriminates against someone who uses a wheelchair.

What are the prohibited grounds covered by the Human Rights Act?

Age
People aged 16 years and over are protected from being discriminated against because of their age.

(Children and young people aged 15 years and under are not protected from discrimination on the basis of age although they are protected from discrimination on other grounds, such as sex or disability.)

Colour, race, or ethnic or national origins
This includes nationality or citizenship.

Disability

This means:

physical disability or impairment
physical or psychiatric illness
intellectual or psychological disability or impairment
any other loss or abnormality of psychological, physiological or anatomical structure or function
reliance on a guide dog, wheelchair or other remedial means
the presence in the body of organisms capable of causing illness (such as HIV or hepatitis).

Employment status
This means being unemployed, receiving a benefit under the Social Security Act 1964 or accident compensation (ACC).

Ethical belief
This means not having a particular religious belief or any religious belief.

Family status
This means being responsible for children or other dependants (part-time or full-time); not being responsible for children or other dependants; being married to, or in a civil union or de facto relationship with a particular person; or being a relative of a particular person.

Marital status
This means being single; married; in a civil union or de facto relationship; the surviving spouse of a marriage or the surviving partner of a civil union or de facto relationship; separated from a spouse or civil union partner; a party to a marriage or civil union that is now dissolved, or to a de facto relationship that is now ended.

Political opinion
This includes the lack of a particular political opinion or having any political opinion. This definition has been narrowly interpreted by the High Court as being confined to those beliefs or opinions which bear on government or which are connected in any reasonable way with relations between a citizen and the State. The Commission considers political opinion also relates to beliefs or opinions about the policies and actions of local government.

Religious belief
This is not limited to traditional or mainstream religions. “Religious belief” is given a broad meaning in New Zealand law.

Sex (gender)
This means being male, female or transgender and includes pregnancy, breastfeeding and childbirth.

Sexual orientation
This means being heterosexual, homosexual, lesbian or bisexual.

These prohibited grounds apply to a person’s past, present or assumed circumstances. For example, it is unlawful to discriminate against someone because they have a mental illness, had a mental illness in the past, or are incorrectly assumed to have a mental illness.

The grounds also apply to a relative or associate of a person. For example, it is unlawful to discriminate against someone because they have a relative who has a mental illness.

What is sexual harassment?

Sexual harassment includes a request for sexual intercourse, sexual contact, or other sexual activity together with a promise (even one that is implied) of preferential treatment or a threat of detrimental treatment.

It includes the use of behaviour, language or visual material of a sexual nature that is unwelcome or offensive and either repeated or significant enough to have a detrimental effect on a person.

Examples of sexual harassment can include telling sexual or smutty jokes, asking questions about someone’s sex life, following someone home from work or unwelcome physical contact.

When it happens in one of the areas of public life identified in the Act, sexual harassment is unlawful.

A woman’s new boss frequently makes comments about her clothes and her body and asks her details about her relationship with her partner. He tells jokes about sex, occasionally touches her shoulders and is offended when she refuses a ride home. When she asks him to stop his behaviour, he says he doesn’t know what she’s talking about. He then buys her flowers and says she was obviously upset about something.

What is racial harassment?

Racial harassment is behaviour that is hurtful or offensive by reference to race, colour, ethnic or national origin and is either repeated or serious enough to have a detrimental effect on a person. It can include making offensive remarks about a person’s race, making jokes about a person’s race and calling people by racist names.

Racial harassment may be unintentional. However, even if a person is unaware of the effect of their actions, they can still be held responsible.

When it happens in one of the areas of public life identified in the Act, racial harassment is unlawful.

A number of co-workers regularly mimic the way a Somali apprentice talks. They laugh at him and pretend they can’t understand when he talks. In the lunch room, they call him racist names and make monkey noises when he walks past them. When he protests, they tell him he can’t take a joke.

What is “exciting racial disharmony”?

It is unlawful to cause or excite hostility against groups of people, or bring them into contempt, because of their race, colour, or ethnic or national origin.

Under the Act, exciting racial disharmony means to:

publish, distribute or broadcast material which is threatening, abusive or insulting
use threatening, abusive or insulting words in a public place
use threatening, abusive or insulting words in a situation where the speaker knows that they are likely to be reported.

To be unlawful, the action must incite, or be likely to incite, hatred against a group of people or bring them into contempt. An action does not need to be deliberate to be against the law.

The right to freedom of expression is an important part of New Zealand’s democratic society. For this reason, a complaint of exciting racial disharmony must be balanced against the right to freedom of expression. Complaints must meet a high threshold before they can be progressed.

Serious threats or insults made against individuals may be best dealt with under criminal law or by a civil action for defamation.

What are the areas of public life covered by the Human Rights Act?

It is unlawful to harass or discriminate against someone in the following areas of public life.

Access to education
No educational establishment (pre-school, school, tertiary institution, university) can lawfully refuse to admit someone as a student, admit them on less favourable terms and conditions, deny or restrict their access to any benefits or services, exclude them as a student, or disadvantage them because of any of the grounds of unlawful discrimination.

Exceptions: Certain exceptions apply to establishments for particular groups, courses and counselling, and in some circumstances, in relation to disability.

Access to public places, vehicles and facilities
No one can lawfully refuse anyone access to or the use of any place or vehicle for members of the public, or any facilities in that place or vehicle because of any of the grounds of unlawful discrimination. It is unlawful to be asked to leave or stop using a place, vehicle or facility because of any of the grounds of unlawful discrimination.

Exceptions: Certain exceptions apply to separate facilities for men and women, such as public toilets and in some circumstances, in relation to disability.

Employment
An employer cannot use any of the grounds of unlawful discrimination in order to:

refuse to employ someone
offer someone less favourable terms of employment than other similar employees or applicants enjoy (including conditions of work, superannuation, fringe benefits, training, promotion and transfer opportunities)
dismiss someone or disadvantage them in ways that other similar employees are not
retire someone or make them retire or resign.

These protections apply to employees, independent contractors or people providing unpaid work. People are protected if they are applying for a job, as long as they are appropriately qualified for the job.

In addition, an employer cannot ask questions – either on an application form or in a job interview – that may indicate an intention to discriminate on any of the grounds of unlawful discrimination. For example, being asked whether or not someone has children may indicate an intention to discriminate against them on the basis of their family status.

Exceptions: Some exceptions apply to crews of foreign ships and aircraft, work involving national security, work performed outside New Zealand, political appointments, and appointments to the armed forces and the police. Some further exceptions relate to the grounds of religion, disability, age, employment of a political nature, and family status.

Government or public sector activities
A person cannot be discriminated against by the central government on any of the grounds of unlawful discrimination. This includes actions by Parliament, government ministries and departments, and the judiciary. It also includes any person or body that performs a public function conferred by law, such as schools providing public education or actions carried out by local bodies. It covers most central and local government activity.

Exceptions: There are some circumstances where a person cannot make a complaint of discrimination to the Commission, including:

matters that occur within Parliament (including select committees) – these complaints should be made to the Speaker of the House
judgments or decisions of courts – these complaints must be dealt with by appeals within the court system
issues relating to legislation and government policy when these are to do with immigration.

Provision of goods and services
It is unlawful for someone to withhold goods, services or facilities, or to provide them on less favourable terms or conditions, because of any of the grounds of unlawful discrimination. The term “facilities” includes banking, insurance, grants, loans, credit or finance.

Exceptions: Some exceptions apply to clubs, courses and counselling, public decency or safety, skill, insurance, sport, travel services and reduced charges. In some circumstances, an exception is made in relation to disability.

Provision of land, housing and accommodation
No one can lawfully refuse to sell, lease or rent a person land or residential or business accommodation, supply them to a person on less favourable terms and conditions, treat a person differently, or make a person leave or sell any land, housing or accommodation because of any of the grounds of unlawful discrimination.

Exceptions: Some exceptions apply to shared residential accommodation, hostels and institutions. In some circumstances, an exception is made in relation to disability.

Other areas of public life
People are also protected from unlawful discrimination in business partnerships and by industrial and professional associations, qualifying bodies, and vocational training bodies. It is against the law to publish or display advertisements or notices that may indicate an intention to discriminate on any of the grounds of unlawful discrimination, in any of the areas covered by the Act.

Exceptions or justification

The Human Rights Act contains a number of specific exceptions to the grounds and areas of unlawful discrimination. The major exceptions include:

government or public sector activities that are demonstrably justifiable in a free and democratic society
affirmative action schemes (known as special measures) based on genuine need.

There are other exceptions to the Act that apply in different situations. More detailed information about where and when exceptions apply is available by contacting the Commission InfoLine or visiting www.hrc.co.nz.

Discrimination authorised by law

If discriminatory conduct is authorised by a law, a complaint can be made about the law but not about discriminatory conduct as a result of the law. For example, people aged under 18 cannot vote in general elections. If a person under 18 complained about someone refusing to let them vote, the complaint would be dealt with as a complaint about the law rather than the person who refused to enrol them.

Discriminatory laws

In general, a law cannot be overturned just because it contradicts the Human Rights Act. However, if a court or the Human Rights Review Tribunal finds a law to be inconsistent with the Act, a “declaration of inconsistency” can be issued. The minister responsible for the law must report the declaration to Parliament and state what the Government intends to do about it. Some remedies, such as compensation, are not available in disputes about discriminatory laws.

3. Resolving discrimination and harassment

What if someone feels they have been harassed or discriminated against?

People can phone or email the Commission’s InfoLine to discuss their issue. An initial conversation can help clarify the issue, as well as look at possible ways to resolve the situation. This might include making a complaint to the Commission.

There may be other less formal ways to resolve an issue. Commission staff can discuss some of the options available in order to work out the best way to approach the situation. For example, providing information about rights so a complainant can discuss the issue directly with the person or organisation involved.

If the Commission is not the appropriate organisation to assist with an enquiry or complaint, staff will explain why and help to get in touch with the agency that is best able to help.

Some actions that are unlawful under the Human Rights Act are also prohibited under other laws. For example, the Employment Relations Act prohibits discrimination in employment on the same grounds as the Human Rights Act. Both Acts also prohibit sexual and racial harassment in employment. Both the Human Rights Commission and the Department of Labour provide a dispute resolution service and people can approach either organisation for help.

How to make a complaint to the Commission

People can lodge a complaint with the Commission by phone, fax, email or post. A complaint does not need to be made in writing. However, if the issue is complex, or it is a long running dispute, it may be preferable to provide a written summary so the Commission has the necessary information.

The complaint form is on the Commission’s website www.hrc.co.nz or one can be sent in the post. Commission staff can provide assistance in filling out the form.

The Commission has TTY and language interpreting services available for telephone enquiries. Information and complaint forms are available in alternative formats for people with visual impairments.

Can a person make a complaint if they have not been personally affected?

Complaints are generally made by the person who has been disadvantaged by a particular action or policy. However, people can complain if they consider an action or policy discriminates against other people, or that it might discriminate against them or other people in the future.

There may be individuals or groups who cannot make a complaint themselves. If this is the case, it is possible to make a complaint on behalf of someone else.

A person can make a complaint on behalf of a group of people. This kind of complaint is a representative complaint or “class action”. If someone is considering making a representative complaint, they may first want to discuss the issue with the Commission or consider obtaining independent legal advice.

How are complaints assessed?

No two complaints are the same. The Commission assesses the individual circumstances of each complaint before deciding if it is appropriate to try and resolve the matter through the dispute resolution service.

The Commission does not form an opinion about whether or not a breach of the Act has happened. In other words, the Commission does not “investigate” matters or “make findings” about whether or not a particular action or policy is discriminatory.

Rather, the aim of the Commission’s disputes resolution service is to help resolve disputes about possible breaches of the Human Rights Act. This means a complaint does not need to show that an actual breach of the law took place.

In general, a complaint of discrimination must at least show a prohibited ground – such as sex or race – as influencing or being connected to the alleged activity or behaviour on which it is based. The Commission will also consider other factors before determining whether or not to offer a dispute resolution process. This includes whether it involves disadvantage or detriment; whether there is another agency or process better suited to respond to the complaint; when the complainant has known of the situation they complain about for more than 12 months, whether the mediation process remains appropriate.

If the Commission believes a complaint would be better addressed by another agency, staff will explain why and help the enquirer get in contact with the right organisation.

What happens when the Commission accepts a complaint?

The Commission provides a free, impartial and timely dispute resolution service to help people resolve complaints of discrimination and harassment.

The process allows people to discuss the issues in a fair, open and constructive way. It does not matter who is involved – individuals, a large company or a government agency – the Commission will make sure everyone has an equal say. It is important that people from different social and cultural backgrounds feel comfortable with the process.

The dispute resolution process can take a number of forms, depending on what is best for the person. It can include:

“self help”, or providing information needed to resolve the matter independently
providing information or education resources to assist the parties involved to address discrimination and harassment
mediation between the different parties, either by written correspondence, telephone calls or in a face-to-face meeting.

The mediator assigned to the complaint by the Commission will make sure everyone involved understands what will happen at each stage of the process. They will explain what the Human Rights Act says about complaints of this type and provide examples of possible solutions.

All the Commission’s mediators aim to meet reasonable timeframes; treat all people involved in disputes fairly, impartially and with respect; and show sensitivity to people’s individual needs.

What happens when a complaint is made against someone?

If a complaint has been made against a person or their organisation, the Commission will contact them to discuss the complaint and provide an opportunity to respond.

Sometimes the Commission may consider the matter relatively easy to resolve. In those cases, staff may simply have an informal discussion over the phone.

Other complaints may be more involved and require a mediation meeting. If that is the case, the Commission mediator will discuss the process so all parties know what is involved at each stage.

If the Commission attempts to set up a mediation meeting, this does not mean there has been a view formed that there has been a breach of the Human Rights Act. The Commission does not make decisions about whether or not particular actions or policies are discriminatory. Rather, the aim is to work with all parties to clarify the issues and find practical ways to resolve the complaint.

The Commission will attempt to resolve the complaint in a fair, impartial and timely way to minimise the stress and anxiety involved.

Employer liability

Employers are liable for unlawful behaviour of their employees, unless they have taken steps to prevent discrimination or harassment from occurring in their workplace. If an employment-related complaint to the Commission is about a particular employee, the employer is generally notified of the complaint and invited to comment.

What are some likely outcomes?

A settlement to a complaint is negotiated and agreed to by all the parties involved. It can take a number of different forms, such as:

an apology
providing a reference
an agreement to not discriminate in the future
an agreement to undertake an education or training programme
compensation for hurt feelings and/or losses experienced by the person complaining.

After being made redundant, a woman complained to the Commission that her supervisor had made rude remarks and physically touched her while employed with the company. She had not wanted to complain at the time for fear of repercussions. The Commission organised a mediation meeting with the former employer and the supervisor, who denied the allegations. During mediation, the parties reached a settlement, which included financial compensation and counseling sessions for the complainant. The company also agreed to develop a sexual harassment prevention policy.

Will people need a lawyer?

A lawyer is not needed to lodge a complaint with the Commission or to take part in the dispute resolution process. The Commission tries to make things as informal as possible. However, those involved are entitled to get their own legal advice, if desired.

Will the Commission represent a complainant or take their side?

The Commission does not provide legal representation for anyone involved in a complaint. The Commission is impartial and helps people understand the issues and work together to find a solution that everyone can agree to.

Is the dispute resolution process confidential?

This means statements made as part of mediation cannot be disclosed to anyone outside of that process (except where everyone agrees) or be used for any other purpose. The Commission strongly recommends that parties to a complaint do not make public comments about the process while it is happening.

When a dispute has been resolved, the parties involved may agree to make a public statement, particularly if there has been strong public or media interest in the issue. The Commission can help write a statement that everyone agrees to.

How does the process protect against allegations of defamation?

People who provide information to the Commission in good faith and who believe what they are saying to be true are protected against allegations of defamation.

This protection does not extend outside of the dispute resolution process.

Making a false statement to the Commission is an offence and false statements may be defamatory.

What happens if a party does not honour a settlement?

Settlements agreed to through the Commission’s dispute resolution service are legally binding between the parties. It is very rare that a party does not honour the agreement. If it does happen, contact the Commission to discuss the options available. One option is to have the agreement legally enforced by the Human Rights Review Tribunal.

What happens if a complaint cannot be resolved?

Complaints that cannot be resolved through the Commission’s dispute resolution service can be heard by the Human Rights Review Tribunal. This is an independent tribunal administered by the Ministry of Justice.

The Human Rights Review Tribunal is able to hear a complaint and make a decision. It has the powers of a court and can award damages and order other remedies. While the Commission’s dispute resolution process is private and confidential, a complaint heard by the Tribunal is not. Proceedings are generally open to the public, but people can apply to have names suppressed.

If a complaint is taken to the Tribunal, they may ask the Office of Human Rights Proceedings to provide them with free legal representation. The Office has limited resources and cannot provide representation to all those who apply. Each case is assessed on its merits.

The Office is likely to reject an application if no attempt has been made to resolve the complaint through the Commission’s disputes resolution service. If the Office decides not to provide legal representation, someone can take their case to the Tribunal at their own expense.

How are people protected against victimisation?

The Human Rights Act protects people from being victimised because they have contacted the Commission about a complaint or supported another person to make a complaint. It similarly applies to people who have taken or intend to take action under the Protected Disclosures Act.

What if someone is not happy with how the Commission deals with their complaint?

The Commission will consider a complaint in a fair, impartial manner and within a reasonable time frame. People will be treated with courtesy and respect, and information on each stage of the dispute resolution process will be given to them.

If, however, someone is not happy with how their complaint is dealt with, they should discuss their concerns with the Commission’s mediator and try to resolve the issues. If they still have concerns, they can raise them with the Commission’s Chief Mediator. If the issues cannot be resolved, a person can write to the Commission’s Executive Director, who will look into the complaint.

People also have the right to contact the Office of the Ombudsmen, who can review how the Commission handled a complaint.

What else can the Commission do to address discrimination?

Some complaints of discrimination and breaches of human rights cannot be properly dealt with through the Commission’s dispute resolution service. Under the Human Rights Act, the Commission has been given a wide range of powers to address different human rights issues in ways that will deliver the best long-term outcome.

For example, the Commission can conduct a public inquiry into important human rights issues. A public inquiry can raise community understanding of the issues and make recommendations to government and other agencies to help address systemic discrimination. An example is the Commission’s inquiry into accessible public land transport for people with disabilities.

The Commission can also provide informal intervention to help resolve human rights or discrimination issues. This could include facilitating a meeting between different groups, providing education or training programs, or developing guidelines to assist organisations understand their responsibilities under the Human Rights Act.

4. Mediation meetings

What happens at a mediation meeting?

Mediation meetings are kept as informal as possible. They are not like a courtroom – there is no judge and jury. Helped by the Commission’s mediator, parties work through the issues and try to come up with a solution.

The Commission’s mediator will run the meeting and make sure things go smoothly. The mediator will make sure everyone knows what will happen and give each person a chance to state their point of view and ask questions.

The mediator will help the parties involved to understand each other’s perspective and the issues involved.

Finally, the mediator will try and help everyone come to a solution that all parties can agree on. The mediator does not impose their view or tell the parties what to do. In some cases, a settlement agreement will be written at the meeting and sometimes it will happen after the meeting. On other occasions, a formal written agreement will not be needed.

Preparing for a mediation meeting

The Commission’s mediator may ask attendees to bring along specific documents that relate to the complaint. This is a normal part of the process and helps the mediator to get a better understanding of the issues. It is also good to write down things to say so no important points are forgotten.

How should mediation meetings be approached?

People should be prepared to listen and accept their views are likely to be quite different to that of the other people involved. As far as possible, try to look at the situation from the other person’s perspective.

Having realistic expectations of the sort of settlement that might be possible makes it more likely the issue will be successfully resolved.

Where are mediation meetings held?

For people who live in Auckland, Wellington or Christchurch, mediation meetings are usually held at the offices of the Human Rights Commission. For people who live elsewhere, mediation meetings are usually held in a neutral venue that is convenient to everyone involved.

Who can come to a mediation meeting?

It is possible to take an advocate or support person to mediation meetings. The Commission’s mediator needs to be advised of this beforehand.

How long does a mediation meeting take?

Most mediation meetings take between two and four hours. A small number can last all day. In some cases, more than one meeting may be needed. The mediator can advise how much time may be needed.

5. Contacting the Commission

For more detailed information about how to make or respond to a complaint under the Human Rights Act 1993, contact the Human Rights Commission InfoLine.

Phone: 0800 496 877

Fax: 09 377 3593

Email: infoline@hrc.co.nz

Txt: 0210 236 4253

Website: www.hrc.co.nz

Language Line, an interpreting service, is available.
An appointment with a sign language interpreter is available.
If you have a hearing or speech impairment, you can contact the Commission using the New Zealand Relay Service. NZ Relay is a telecommunications service and all calls are confidential. www.nzrelay.co.nz

Disclaimer: While we have tried to make this educational information as accurate as possible, it is not exhaustive and should not be regarded as legal advice. Please contact a lawyer for specific legal advice. You are also welcome to phone the Commission for further advice.