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Communtity Law Manual | Discrimination | Overview of the anti-discrimination laws

Overview of the anti-discrimination laws


“Discrimination” is when you’re treated worse than someone else in the same or a similar situation. However, not all discrimination is illegal under the anti-discrimination laws in the Human Rights Act 1993. The bad treatment will be illegal if it’s done because of certain reasons covered by that Act – like your race or country of origin, or your gender identity or your sexual orientation – and if it happens in an area of public life covered by those laws – like when you’re applying for a job, renting a flat, buying things from shops, or dealing with government departments. See below, “Working out whether how you were treated was illegal”.

If you believe you’ve been discriminated against, you can complain to the Human Rights Commission. If you can’t resolve the problem with the Commission’s help, your complaint could go to the Human Rights Review Tribunal. The Tribunal is like a court, and it can make various orders against the other person to put right what happened to you. In some cases, the Tribunal can tell them to pay you money (“damages”).

As well as making discrimination illegal in many cases, the anti-discrimination laws specifically ban sexual and racial harassment, and they also ban people from “inciting racial disharmony”. See below, “Other protections against unfair treatment: sexual and racial harassment”.

Working out whether how you were treated was illegal

If you think you’ve been treated unfairly, you need to answer several key questions to work out whether what the other person did was against the law:

1. Why did they do it? – Did they do it because of a reason (a “ground”) covered by the anti-discrimination laws, like your country of origin? (These grounds are explained in this chapter under “Race, gender and other illegal grounds of discrimination”.)

2. When and where did they do it? – Did it happen in one of the areas of public life covered by the anti-discrimination laws, like applying for a flat? (These are explained in this chapter under “Jobs, flats, shops and other areas of life where discrimination is illegal”.)

3. What was the result? – Were you disadvantaged in some way by what happened? For example, were you turned down for a flat?

4. Are they allowed to do it because of a special exception? – Is there an exception in the anti-discrimination laws that makes the discrimination legal when it would otherwise have been illegal? For example, you can be refused a flat on certain grounds if the landlord would also have been living in the flat.

If the unfair treatment was because of an illegal ground, and it happened in one of those areas of public life, and you were disadvantaged, and there’s not an exception in your case, then the discrimination was illegal. You can then take action, starting by complaining to the Human Rights Commission (see “Taking action: What you can do if you’re discriminated against” in this chapter).

Human Rights Act 1993, s 92F(2)

Note: If your case goes to the Human Rights Review Tribunal (the court that deals with discrimination cases) you’ll have to show the Tribunal first, that the discrimination was on one of the illegal grounds; second, that it was in one of the relevant areas of life (like applying for a job or a flat); and third, that you were disadvantaged by it. But if the person who discriminated against you thinks there’s an exception that justifies what they did, they will to convince the Tribunal of this, rather than you having to show that the exception didn’t apply in your case. The legal term for this issue is “the burden of proof” (or “onus of proof”) – so when it comes to exceptions that allow discrimination, the other person bears the burden of proving that the exception applies in your case.

Does it make a difference if the discrimination was by a government organisation?

No, usually it doesn’t make any difference. Discrimination is against the law whether it’s by private businesses, organisations and individuals (this is covered by the Human Rights Act 1993), or by government departments and officials or other public bodies like schools (covered by the New Zealand Bill of Rights Act 1990). There are however some special rules and exceptions that apply to discrimination by government bodies: see below, “Government bodies, public services, and schools”.

Indirect discrimination is also illegal

Human Rights Act 1993, s 65

Discrimination can be direct or indirect, and both kinds are illegal. Direct discrimination would be where, for example, your employer pays you less because you’re a woman. Indirect discrimination, on the other hand, is where what happened doesn’t seem to breach the anti-discrimination laws on a first look but in practice it has the effect of discriminating in a way that’s illegal. For example, if you use a wheelchair and some of your university lectures are on the fifth floor in a building without a lift, then this is indirect discrimination against you on the illegal ground of disability.

Another example of indirect discrimination could be if you’re unemployed and a power company refuses to accept you as a customer because you’re on a low income and can’t get a credit card. That could be indirect discrimination against unemployed people.

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