Employment: Access to jobs and protection against discrimination
Discrimination in the workplace: Problems with your employer
In this part of the chapter, we explain how New Zealand’s anti-discrimination laws protect you from being treated unfairly, and also require employers to take positive steps to accommodate your impairment, so that you have equal access to work and employment.
Many cases of discrimination might involve a simple ban against doing something – like refusing a job to a woman because she’s a woman. But the laws protecting disabled people from discrimination are a bit different, going further than just negative rules – they in fact place a positive requirement on people to make some adjustments – “reasonable accommodation”– in their business, school or whatever so that you have the same access as other people.
We’ll explain how this works, including how you can use the Human Rights Act in your particular case, and we give a real-life example of a workplace discrimination case that went to court.
And although in this section we’re talking about discrimination in employment, the positive duty to make reasonable accommodations also applies in other areas where you’re protected from discrimination – like access to shops and transport services.
“Reasonable accommodations”: Your right to adjustments that give you equal access
When disability discrimination cases have gone to the courts in New Zealand, the judges have generally understood that discrimination against disabled people presents different issues compared to other types of discrimination.
For example, if a landlord would like to refuse their flat to any gay couples, the law says this is illegal and that the fact that a potential tenant is gay has to be ignored, so that they have equal treatment. By contrast, you can’t get rid of discrimination against disabled people by ignoring their impairment and treating them in a way that on the face of it is “equal” with other people. Real equality here requires making adjustments – “reasonable accommodations” – in particular cases so that a disabled person has genuinely equal access. The adjustments needed will always depend on the particular person, their particular impairment, and the particular context – for example, if it’s a work issue, the particular kind of work they do.
The New Zealand courts have recognised that this idea of reasonable accommodation is at the centre of New Zealand’s anti-discrimination laws. It’s a key idea in the UN Convention on the Rights of Persons with Disabilities, and our Human Rights Act says that part of the purpose of the Act is to protect human rights in New Zealand in line with international agreements like this Disability Convention. The words “reasonable accommodation” themselves aren’t used in the Human Rights Act, but the idea is.
Taking your case to the courts
Two stages to a successful claim for workplace discrimination
First, you have to show that it looks like there was discrimination. Second, if you’ve got past that first stage, the employer will need to show that they couldn’t reasonably accommodate you – or put another way, that it would be unreasonable and unfair for them to have to make the changes that would be needed to accommodate you, so you can do your work.
Stage 1: Does it look like there was discrimination here?
In the first stage, you have to show that, on a first impression, it looks like you’ve been treated differently from other people that don’t have your impairment. Here you don’t have to go into the question of whether any necessary adjustments are reasonable or unreasonable – the employer can argue that point at the next stage if they choose. You just need to show that your case has the basic ingredients of discrimination – what lawyers call “prima facie” discrimination – or “at first sight”.
So if, for example, you were fired from your job after a period of mental illness, you’ll have to show the basic stuff, namely that:
- you did get fired
- mental illness comes within the definition of “disability” in the Human Rights Act (it does)
- you were fired because of the mental illness – which doesn’t mean it has to be the only reason or even the main reason, just so long as it was a real factor in your boss firing you.
Stage 2: Can the employer prove you’re asking for “unreasonable” changes?
In the second stage, the issue of reasonable accommodation comes into play, and the employer gets the chance to argue that the changes needed for you to do your job would have been unreasonable.
The employer has to show that for you to do your job, it would take the kind of special arrangements that would be unreasonable to expect an employer to make – this is the “reasonable accommodation” point. There are two different exceptions that the employer can make use of here to show that the necessary accommodations are “unreasonable”.
First, they could prove that you’d need special facilities or services (like special equipment or special assistance) that it would be unreasonable to expect the employer to provide. As well as having to show the “unreasonable” aspect here, they also can’t use this exception at all if they could avoid the whole problem just by getting another employee to do the particular tasks that are in issue, without any unreasonable disruptions.
The second possible exception is about risk. The employer could show that because of your impairment you’d present an unreasonable risk to yourself or others (that is, not just a minor risk), and that the steps the employer would need to take to reduce this risk to normal levels would cause an unreasonable amount of disruption. But again, as well as proving the “unreasonable” aspect here, the employer can’t use this exception if another employee could do the tasks.
Different claims – similar laws and processes
If you’ve been discriminated against in your workplace, you have the option of either using your employment law protections, which will involve taking a “personal grievance” case to the Employment Relations Authority, or complaining to the Human Rights Commission under the human rights laws, which could result in your case going to the Human Rights Review Tribunal.
You should get some advice on which option would be the better tactic in your case – but whichever option you take, the law is basically the same, and there will be two main stages to how the decision-maker approaches and decides the case. This is partly because the employment law protections against discrimination simply borrow the protections from the Human Rights Act anyway.
So what does “reasonable” mean?
What is “reasonable” and “unreasonable” will always depend on your particular case – your particular impairment and characteristics, your particular job and workplace.
The judge will take into account the benefits and costs of making the changes. But if your employer claims it will cost too much to make the changes, they have to provide real evidence of this. Also, the courts have warned against placing too low a value on accommodating disabled people.
Who has to prove what: Understanding how the burden of proof shifts
You’ll have noticed that in the first stage we’ve said that you, the person bringing the claim, will have to show various things – and that then the second stage is about the employer trying to show they’re covered by one of certain exceptions to do with reasonable/unreasonable accommodation. So there’s an important difference not just in what has to be proved but who has to prove it. This is a legal concept called “burden of proof” – in other words, of who has the responsibility of presenting evidence and proving a certain point. This is something that’s a significant protection for you in bringing a claim – here, things are supposed to be tilted in your favour.
In a criminal case for example, if the police charge you with a crime, they have the burden of proving that you’re guilty – you don’t have to prove that you’re innocent. If they forget to bring evidence to prove a crucial point, their case against you fails. It’s the same if you sue someone in the civil courts for a breach of contract, or if you bring a personal grievance discrimination case under employment law – if you don’t show the Employment Relations Authority that, for example, what happened to you was because of your impairment, your case will fail.
But importantly the discrimination laws say that the burden shifts from you to your boss between stages 1 and 2. They have to show that an exception applies – you don’t have to show that an exception doesn’t apply.
Example of a successful discrimination claim in court
In this case study, we’ll take you through a real workplace discrimination case that went to the Employment Relations Authority. We’ll explain how the ERA approached the case and what the worker had to show at each key stage to make out their claim.
What was the case about?
The person at the centre of this case had been working as an Emergency Department nurse for several years, including doing rostered night shifts. Her doctor gave her a medical certificate saying she should no longer do night shifts because of her mental health condition. She wanted to keep working in the Emergency Department – or “ED” – but the hospital shifted her into other nursing positions.
The nurse took a “personal grievance” against the employer to the Employment Relation Authority – “ERA” – the first-level court that deals with employment law problems. She argued that the hospital should have accommodated her impairment and allowed her to keep being an ED nurse without any night shifts. (A “personal grievance” is a key way of enforcing your legal rights against your employer – see the chapter “Resolving employment problems”.)
The first stage: Does it look like there was discrimination?
The Employment Relations Authority started by looking at whether the nurse had shown the basic ingredients of discrimination in this case. The ERA went through these key elements, and said they were satisfied that:
- the nurse’s medical condition came within the meaning of “disability”, as the definition of “disability” in the Human Rights Act includes “psychiatric illness”
- she’d suffered some kind of loss or harm (a “detriment”) – she’d lost wages and she’d suffered uncertainty and anxiety and loss of job satisfaction
- the hospital made its decision because of her disability.
There was one more key issue left for this first stage – namely, who the nurse should be compared to when deciding whether she’d been treated worse than others. Clearly, she’d suffered a loss (a “detriment”) but her case depends on her suffering a loss that other workers didn’t suffer. The question is – which other workers? This issue – also called the issue of the “comparator group” – may seem obvious, perhaps even a non-question, but in some cases judges have taken a restrictive, technical approach that means the claim of discrimination never gets past stage 1, so that the question of reasonable accommodation never comes up.
The comparison question: Who should you be compared with?
In this case the Employment Relations Authority followed the key directions from New Zealand’s top courts and reached a good outcome. Their approach went like this:
The ERA said the question here was whether the nurse should be compared to all other ED nurses – or instead only to those other ED nurses (real or imagined) who like her couldn’t work night shifts, but for a different reason. The ERA said it had to be the first group – in other words, the “comparator group” had to be all other ED nurses.
If, instead, she had been compared with other ED nurses who also couldn’t work night shifts, then the conclusion would have to be that she wasn’t “discriminated” against at all. This is because the employer said that those other ED nurses would have been dealt with in the same way. So if that narrower comparator group were used, the case would never reach the issue of “reasonable accommodation” in stage 2.
The ERA instead compared her with all other Emergency Department nurses, and so it found she had been discriminated against because other ED nurses weren’t being forced to take other nursing positions outside the ED.
The ERA took their cue from an important Supreme Court case which said that judges had to remember the purpose of the disability protections in the Human Rights Act, which is to provide equal access. In deciding whether you’ve shown in stage 1 that it looks like a case of illegal discrimination, judges shouldn’t be too technical and should remember that part of the purpose and scheme of the Human Rights Act is to consider the reasonable accommodation issue.
You can’t create greater equality of access for disabled people if judges take an inflexible, technical approach to the wording of the Act that ends up ignoring the reality of discrimination against disabled people and never puts employers to the test of making reasonable adjustments.
If it’s a situation where your impairment prevents you doing certain work tasks, or doing them at certain times, it doesn’t serve the purpose of the Act to compare you with other (hypothetical) workers who for different reasons also can’t do those tasks. The effect would be that employers could get away with not providing reasonable accommodation for your impairment simply by showing that they are inflexible with any worker, disabled or not, who for some reason can’t do the particular tasks that you can’t do.
An employer on the other side of you might not care anything about stereotypes – they might just want to avoid any kind of expense or disruption at all to their business, and will apply that approach consistently to any employee who needs or wants some flexibility, saying they need some kind of adjustment to do their job effectively and well. Regardless of their personal motives, the point is that New Zealand’s anti-discrimination laws put a legal obligation on employers to make reasonable accommodations.
The second stage: Has the employer made reasonable accommodations?
You’ll remember that when an employer is arguing the reasonable/unreasonable accommodation point, there were two specific exceptions they might rely on. The first is about having to provide special facilities or services, while the second is about the impairment creating too big a risk. In the case of the ED nurse, the first exception wasn’t relevant, but the second one was – it was about the risk if the nurse did night shifts with her condition, risk to her and to others.
So the ERA looked at the hospital’s arguments here. They noted that several of her colleagues had offered to do her night shifts, and that a group of others also supported the hospital making changes to accommodate her impairment. The ERA said that:
“deploying others with their agreement to cover [her] share of night shift and not requiring [her] to work nights were reasonable measures that [the hospital] could have taken and would have reduced the risk of harm to a normal level. These steps would not have caused unreasonable disruption ….”
In other words, the hospital could have made some adjustments, but they didn’t. So the nurse’s rights to be free from discrimination on the ground of her impairment were breached.
What was the outcome of the case?
The ED nurse won her case. She no longer wanted to go back to her old job with the hospital – instead she claimed for the pay she’d lost by being taken off her ED hours, and she also wanted compensation for the distress the whole episode had caused her. The ERA awarded her most of what she claimed in these two areas.