The A-Z Pre-Employment Guide for employers & employees

S. 

SEX

Q. Can an employer advertise for a male nurse to look after an elderly male patient who does not want a female nurse or vice versa?

A. You can't advertise for a specific gender to fill a position unless the employer can prove that being male is a genuine occupational qualification. The law in this area has not been tested.

SEXUAL HARASSMENT

Q. I think that the job interview contained sexual innuendo, what are my rights?

A. The Act makes it unlawful to request sexual contact, sexual intercourse, or any other form of sexual activity that contains overt or implied promise of preferential treatment or an overt or implied threat of detrimental treatment.

It's important for employers to ensure that interviewers and recruiters are trained to avoid sexual innuendo or other inappropriate behaviour and to have formal processes around the next stage of the process following an interview. Many organisations have policies that deal with sexual harassment; it's essential that the policy covers pre-employment as well as employment. Preventing harassment and bullying is one of the seven key elements of being a good employer.


Q. Who can I complain to about sexual harassment during the job application or interview process?

A. If you've been promised a job, or not given a job, because of sexual harassment you can make a complaint to the Human Rights Commission under the Act.

Sexual harassment can take place through:

  • the use of language, written or spoken, of a sexual nature
  • the use of visual material of a sexual nature
  • physical behaviour of a sexual nature.

The Employment Relations Act does not apply to sexual harassment in a pre-employment situation.

SEXUAL ORIENTATION

Q. Can an employer refuse to offer me a job because of my sexual orientation?

A. No, but there are a limited number of situations the sexual orientation of a job applicant can be taken into account.

The Act says sexual orientation means being heterosexual, homosexual or lesbian or bisexual.


Q. What are the situations where the sexual orientation of a job applicant can be taken into account?

A. One is domestic employment in a private household (see Domestic employment).Another is where the job is that of a counsellor on highly personal matters such as sexual matters or the prevention of violence.

The sexual orientation of a person may also be taken into account in the ordination and engagement of clergy. In 2013 the Human Rights Review Tribunal upheld a decision not to ordain a gay man. The Tribunal relied in part on an exception in the Act whose purpose is to preserve the institutional autonomy of organised religions when making decisions about appointing clergy and ministers.


Q. Can an employer ask me about my relationship with my next-of-kin or emergency contact person when it will effectively disclose that I'm gay?

A. An employer should avoid questions about the relationship between you and the person nominated as your next-of-kin or emergency contact. Ideally next-of-kin information should be obtained when employment commences rather than at the earlier stages of the employment process.


 Q. Should I remove information from my CV that may disclose that I'm a lesbian?

A. Exactly what you disclose is up to you. Being required to disclose your sexual orientation may breach the Act.

Some organisations collecting EEO data through the workplace profile information may ask about sexual orientation to ensure the pool of candidates are as diverse as possible. Employers should avoid asking questions or seeking information about the sexual orientation of job applicants unless they are collecting anonymous statistical data for EEO reporting or for profiling who responds to their job applications. If an employer is collecting data for such purposes, it should ideally be collected on a form that is separate from the job application.

SPEAKING ENGLISH

Q. If an employer needs someone who speaks English fluently, what wording can be used in the advertisement?

A. The advertisement could read that the job requires the successful applicant to have spoken English at a specified level.

An employer could indicate in the advertisement that the shortlisted candidates would undergo an oral competency test. This would provide an objective measure of oral competency. Only a few jobs will require this level of fluency and oral presentation skills.


Q. Can an employer refuse to employ me because I don't speak English with a New Zealand accent?

A. No, provided you can be clearly understood.

A New Zealand accent is unlikely to be considered a genuine occupational qualification except in rare circumstances. In November 2007 an Employment Tribunal in the UK found that an Indian-born British man who worked in a call centre had been discriminated against when he was dismissed because his accent “wasn't English enough”.