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Access to shops, transport and other services

Protection against discrimination by shops, transport and other businesses

Human Rights Act 1993, ss 44, 52

Businesses that provide goods and services to the public, like shops and transport companies, have to make any reasonable adjustments (“reasonable accommodations”) that are needed so that disabled people have access to what they’re providing. This means they can’t refuse to serve you, unless the changes they’d need to make to their business in order to meet your needs would be unreasonable.

Businesses also can’t treat you less favourably than other people (for example by charging you more), unless it would be unreasonable to expect them to meet your needs while still providing you with the same terms as other people.

Example: Who pays if you need extra oxygen as an air traveller?

Case: [2011] NZCA 20

In this case, the judge decided an airline was justified in charging a passenger for the extra oxygen she needed because of her respiratory condition.

The Court of Appeal saidthat it would be unreasonable to expect the airline not to charge more. In other words, providing the extra oxygen for free would fall outside what would be “reasonable accommodation”.

The judges looked at various factors in deciding what was reasonable here, including the fact that the airline was in the business to make a profit, and also what other airlines were doing about this, both in New Zealand and internationally.It found that most airlines providing international flights offered extra oxygen and that many of these charged extra for it. The judges said the question of what is reasonable will generally involve broad value judgements that consider the overall benefits in comparison with the costs.

But the judges said though that although excessive costs could justify a business refusing to accommodate a disabled person, the courts needed to be careful they didn’t put too low a value on the importance of accommodating disabled people. The business should have to give clear and concrete evidence to back up their claim that the costs would be unreasonable – they can’t just make a general claim that they would be too much. The judges warned there may be ways to reduce costs in these situations.

When businesses can refuse to serve you: Exception for professional or health/safety obligations

Human Rights Act 1993, ss 21B(1), 44, 52

Businesses can refuse to serve you if this is required or authorised by some other law, as the following example shows.

Example: If a separate law requires or allows them to refuse you

Case: [2015] NZHRRT 38

A dental technician was justified in refusing to make and fit dentures for a man who was HIV+, because the technician was inexperienced and would have been breaching his legal duty to provide services with reasonable care and skill.

In June 2014, the dental technician refused to make and fit dentures for a man who was HIV positive. This potential customer complained to the Health and Disability Commissioner, who in turn passed the complaint on to the Human Rights Commission. The case then went to the Human Rights Review Tribunal, which decided the case in September 2015.

The dental technician claimed he’d been justified in refusing to do the work because he’d only been in business a year after graduating and therefore he wasn’t experienced enough to take on someone with a serious health condition, including things like heart conditions and Type 2 diabetes. He cited an earlier example where a client of his had had a healing problem and wasn’t able to tolerate the dentures he had been made, and so the technician had refunded the fee to that client. He had experience in making dentures, but not so much in working directly with customers and fitting dentures.

The Human Rights Review Tribunal agreed with the dental technician that he was justified in turning the customer away. The Tribunal said he had a duty under the Code of Health and Disability Service Consumers’ Rights to provide his services with reasonable care and skill (Right 4(1)). This justified him, under the exceptions in the Human Rights Act, in considering a prospective customer’s health in deciding whether to accept them.

Next Section | Access to transport

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