Discrimination Litigation

The Director can provide representation to people wanting to bring unlawful discrimination proceedings in the Human Rights Review Tribunal. 

What is discrimination?

Discrimination occurs when a person is treated unfairly or less favourably than another person in the same or similar circumstances.

When is discrimination considered unlawful? 

Section 21 of the Human Rights Act 1993 (HRA) prohibits discrimination on the following grounds:

  • Sex (which includes childbirth and pregnancy)
  • Marital status
  • Religious belief
  • Ethical belief
  • Race or colour
  • Ethnic or national origins (which includes nationality or citizenship)
  • Disability
  • Age
  • Political opinion (including having no political opinion)
  • Employment status
  • Family status (including having dependents, not having dependents, being married to, or in a civil union or de facto relationship with, a particular person or being a relative of a particular person)
  • Sexual orientation.

The following conduct is also prohibited under the HRA:

  • Sexual harassment
  • Racial harassment
  • Racial disharmony
  • Victimisation
You can find out more about the prohibited grounds of discrimination set out above by visiting the Human Rights Commission's website

Cases of interest - actions against the government/public entities (Part 1A HRA)

Part 1A of the HRA allows discrimination claims to be made against the Government, including claims about Government policy, legislation and regulations. To establish a Part 1A case, it must be shown that the Government has breached the right to freedom from discrimination on one of the grounds in the HRA.

The Court of Appeal has said that to establish discrimination under Part 1A, a plaintiff must show that:

  • there has been differential treatment on a prohibited ground of a person or group in comparable circumstances; and
  • when viewed in context, this differential treatment imposes a material disadvantage on the person or group differentiated against.

The Government can defend a discrimination claim if it can show that the discrimination is reasonable, prescribed by law and demonstrably justifiable in a free and democratic society.

If the complaint is about Government policy or practice, then the Tribunal can make a wider range of orders if the case succeeds. In some cases, this might include financial compensation. The cases below provide examples of Part 1A cases. 

Ministry of Health v Atkinson [2015] – family status discrimination 

The Atkinson case is often referred to as the “Parents as Caregivers” case. It challenged the Ministry of Health’s policy or practice of paying external providers to supply support services to disabled persons in their family homes and declining to pay family members willing to supply those services. The plaintiffs were seven parents who had cared for their children for many years and two of the children. They claimed that the Ministry’s policy amounted to family status discrimination.

In January 2010, the Tribunal found that the Ministry’s policy unlawfully discriminated against parents of disabled adult children based on their family status, causing a material disadvantage.  This decision was affirmed on appeal in the High Court in 2010 and the Court of Appeal in 2013.  

On 20 May 2013, six days after the Court of Appeal decision, the Public Health and Disability Amendment Act (PHDA) was introduced under urgency. Part 4A was inserted, which stated that family members would not generally be paid to provide health or diability support to family members, except in limited circumstances (where that disabled adult has been assessed as having very high needs) and at lower rates than non-family caregivers. In addition, Part 4A completely blocked review of the Act itself, any family care policy, and anything done under the Act or policy, on the basis of specified types of discrimination.

The impact of this case and the PDHA was tested in Spencer, as set out below.


Spencer v Ministry of Health [2016] – family status discrimination

Margaret Spencer has provided care for her 48 year old son, who has Downs Syndrome throughout his life. In 2012, she applied to the Ministry of Health for family caregiver funding. Her funding was refused due to the same policy or practice that was challenged in Atkinson. 

Following the introduction of the PHDA, Mrs Spencer applied to the Ministry of Health for funding again. She also made an application to join the Atkinson proceedings for the purpose of seeking compensation for past discrimination.

The Ministry declined her application for funding on the basis that the Tribunal’s declaration of inconsistency in relation to Atkinson had been suspended. It also opposed her application for joinder as a plaintiff or party to the Atkinson proceeding, on the basis that Part 4A of the PHDA blocked review of such discrimination claims.

In 2013, Mrs Spencer sought a judicial review of the above decisions of the Ministry in the High Court. In October 2013, Chief High Court Judge Justice Winkelmann found in Spencer’s favour. In relation to the application for funding, the suspension order was declared invalid and set aside. Her Honour held that the Ministry acted unlawfully by refusing to consider the application and the Ministry was ordered to reconsider the application.

In relation to the application for joinder, her Honour held that Mrs Spencer was not precluded from joining the Atkinson proceeding on the basis that the provisions under the PHDA precluding applicants from taking complaints to the Commission or the Courts did not apply to complaints or proceedings in relation to this unlawful policy/practice.  The High Court decision was upheld in the Court of Appeal in 2015.

On 20 July 2016, the High Court decided the issue of damages. It held that Mrs Spencer was entitled to damages for pecuniary loss based on a loss of salary from 20 October 2005, when the Atkinson claimants filed their statement of claim, in the amount of $207,681.84.


Child Poverty Action Group v Attorney-General [2015] - employment status discrimination 

Child Poverty Action Group (CPAG) complained that the In-Work Tax Credit (“IWTC”) (a payment of $60 per week which is part of the Working for Families package) discriminated against beneficiaries on the grounds of employment status because it was not available to them. To be eligible for an IWTC, the primary caregiver of a child must work at least 20 hours per week if they are solo-parents, or 30 hours combined for partnered parents.

The Director of Human Rights Proceedings represented CPAG in both the Tribunal and the High Court. The Tribunal heard the case in June and July 2008. It took 19 days and there were 14 witnesses who gave evidence. In its decision of December 2008, the Tribunal found that the IWTC legislation did discriminate against beneficiary families on the ground of employment status. However, it also found that the discrimination was justified in getting beneficiaries into work.

CPAG appealed to the High Court and the case was heard in September 2011. The High Court found the IWTC only affected a small group of persons who, while on a benefit (such as the domestic purposes benefit), would also meet the full-time earner criterion for eligibility for the IWTC. Accordingly, it did not consider there was a real disadvantage to the group that were discriminated against. However, it acknowledged the serious situation of child poverty in the “so-called developed economy” of New Zealand.

In 2015, CPAG appealed to the Court of Appeal. The Court of Appeal found that there was discrimination against all beneficiaries with children and the discrimination caused material harm. Nevertheless, the Court of Appeal declared that the discrimination was justified because it was aimed at getting beneficiaries into work. 


Heads v Attorney General [2015] – age discrimination

In April 2008, Shirley Heads was hit by a truck and killed while on a pedestrian crossing. At the time of her death, Mrs Heads was 64 years of age and Mr Heads was nearly 67. The driver of the truck was convicted of careless use of a motor vehicle causing death.

Where a person who has cover for personal injury dies as a result of fatal injury, the Accident Compensation Corporation Act 2001 (the Act) provides that the Accident Compensation Corporation (the Corporation) is liable to pay weekly compensation to the surviving spouse for five consecutive years. However, if the surviving spouse becomes entitled to weekly compensation at a time when he or she is also entitled to receive superannuation payments (age 65), he or she is entitled to such weekly compensation for a period of twelve months only. This means that if the surviving spouse wants to receive compensation for the remaining four years, he or she has to elect to receive such compensation instead of his or her superannuation payments.

Given that Mr Heads was of superannuation age at the time of his wife’s death, he was forced to decide whether to receive the weekly ACC compensation payments or superannuation payments for the remaining four years.

In 2011, Mr Heads took his case to the Tribunal against the Attorney General. The issue for determination was whether the requirement that a superannuitant surviving spouse elect between ACC compensation on the one hand and NZ superannuation on the other breached the right to be free from discrimination on the grounds of age affirmed under the New Zealand Bill of Rights Act 1990.

In April 2015, the Tribunal found that the ACC legislation was inconsistent with the right to freedom from discrimination on the basis of age.

Cases of interest - actions against private entities (Part 2 HRA)

McClelland v Schindler Lifts NZ Limited [2015] – disability discrimination

In May 2014 Mr McClelland commenced employment as a Service Technician for Schindler Lifts NZ Ltd (Schindler). Mc McClelland’s employment was subject to a 90-day trial period, during which his employment was terminated. He brought a claim to the Tribunal alleging that his termination was unlawful because it was based on one of the prohibited grounds of discrimination, being a physical disability or impairment.

For some years, Mr McClelland had experiences a slight shake or tremor in his hands, particularly his left hand.  The reason given for his termination was safety concerns based on his hand tremor. However, there was no evidence to suggest that his hand tremor meant he could not perform his duties without a risk of harm to himself or others.

In October 2015 The Tribunal declared that Schindler had breached s 22 of the Human Rights Act 1993 (unlawful discrimination in employment matters). Mr Taylor was awarded damages for pecuniary loss of wages in the sum of $3713 and $700 for travel expenses, together with damages for emotional harm in the sum of $25,000.  Schindler was also ordered to provide training to its senior management staff in relation to their obligations under the Human Rights Act 1993.


Meulenbroek v Vision Antenna Systems Ltd [2014] – religious discrimination

Mr Meulenbroek had worked for Vision Antenna Systems Ltd as a technician since 2004. In 2011, during the course of his employment, he rejoined the Seventh Day Adventies Church. Consistent with his faith, he decided not to work from sunset Friday until sunset Saturday. However, his employment contract required him to work on Saturdays. When he refused to work on a Saturday, Visions dismissed him from his employment.

There is a mandatory statutory duty under the Human Rights Act on employers to accommodate religious practices of employees so long as any adjustment to the employers’ activities is not unreasonable. Mr Meulenbroek brought proceedings in the Tribunal on the basis that he had been unlawfully discriminated against in his employment because of his religious practicse. The Tribunal considered that Mr Meulenbroek’s religious practices (i.e his faith which prevented him from working on the Sabbath) was a material reason for the dismissal. The Tribunal also found no evidence of a detrimental effect on Vision’s business by allowing Mr Meulenbroek not to work on Saturdays.

In October 2014 the Tribunal issued a declaration that Vision had breached section 22 of the Human Rights Act for unlawful discrimination in employment matters. It ordered Vision to pay Mr Meulenbroek $8,128.09 for lost wages, $692.90 for legal costs and $25,000 for humiliation, loss of dignity and injury to feelings. It also ordered that Vision, in conjunction with the Human Rights Commission, provide training to its directors and management staff on their obligations under HRA.


Satnam Singh v Shane Singh and Scorpion Liquor (2006) Ltd [2015] – racial harassment

The aggrieved individual, Satnam Singh, was an Indian national and a Sikh.  He arrived in New Zealand in November 2011 and worked at Scorpion Liquor 2006 (Scorpion Liquor) from January to March 2012. During this time, he was subjected to serious racial harassment by his manager, which culminated in being hit on the head by a clipboard, knocking off a small cap he was wearing and his turban. His manager further assaulted him by punching him in the head, forcing him to leave his employment.

The aggrieved individual felt compelled to trim his beard and hair, in an attempt to avoid the constant derogatory remarks directed towards him by his manager. He also began to wear a small turban, concealed by a cap. He became seriously anxious and scared following the assault and he experienced depression and thoughts of suicide. When a friend told his family what had happened, his mother and father said they never wanted to see him again.

In March 2015 the Tribunal made a clear finding of racial harassment and made a declaration to that effect. It also issued a restraining order to prevent the manager or his staff from repeating any such behaviour that amounted to racial harassment, together with a training order for the company and its manager to attend training on their obligations under the HRA. The aggrieved individual also received $45,000 in damages for humiliation, loss of dignity and injury to feelings. 


DML v Montgomery [2014] – sexual harassment

The aggrieved individual was a sex worker at the Kensington Inn. From around April 200 to June 2010, her manager, Mr Montgomery made threatening and sexual comments about her and about other sex workers during the course of her employment, which made her very uncomfortable. The aggrieved individual had suffered from depression since she was a child and Mr Montgomery’s sexual comments made her more moody and depressed than usual.

In February 2014, the Tribunal found that Mr Montgomery had sexually harassed the aggrieved individual through his use language of a sexual nature that was both unwelcome and offensive, repetitive or of such a significant nature that it had a detrimental effect on the aggrieved person in respect of her employment. The company for whom she worked as also vicariously liable for Mr Montgomery’s actions.

The Tribunal made a declaration that Mr Montgomery and the company for whom he worked had breached the HRA. It also issued a restraining order to prevent Mr Montgomery or any other staff member from repeating such behaviour that amounted to sexual harassment, together with a training order for Mr Montgomery and his company to understand why sexual harassment is unacceptable in any context, to ensure that they and their employees receive appropriate training and to reinforce the restraining order. The Tribunal also made an order for damages in the sum of $25,000 for humiliation, loss of dignity and injury to feelings.