Workplace Discrimination

Workplace discrimination involves treating someone unfavourably because they belong to a particular group or have certain characteristics protected by law. The Human Rights Act 1993 prohibits discrimination based on sex, marital status, religious belief, ethical belief, colour, race, ethnic or national origins, disability, age, political opinion, employment status, family status, and sexual orientation.

Discrimination can be direct, where someone is openly treated differently because of a protected characteristic, or indirect, where apparently neutral policies or practices disadvantage certain groups. For example, requiring all employees to work weekends might indirectly discriminate against people with religious obligations.

The discrimination doesn't need to be intentional to be unlawful. Even well-meaning policies or unconscious bias can result in discriminatory outcomes. What matters is the effect of the treatment, not the employer's intention.

Workplace discrimination often intersects with other employment issues. For instance, if you're dismissed after complaining about discriminatory treatment, this could constitute both unfair dismissal and unlawful discrimination, giving you multiple avenues for redress.

Gender discrimination remains one of the most common forms of workplace discrimination, affecting pay equity, promotion opportunities, and treatment during pregnancy or parental leave. Pregnancy discrimination is particularly prevalent, with women facing disadvantage in hiring, promotion, or job security due to actual or potential pregnancy.

Age discrimination affects both older and younger workers, with older employees facing barriers to employment or early retirement pressure, while younger workers may be denied opportunities or fair compensation. Age discrimination can be subtle, disguised as restructuring or performance concerns.

Racial and ethnic discrimination can manifest in hiring practices, workplace culture, language requirements, or differential treatment in disciplinary processes. This type of discrimination often intersects with cultural misunderstandings or unconscious bias in decision-making.

Disability discrimination occurs when employers fail to provide reasonable accommodations or treat employees unfavourably because of their disability. This includes mental health conditions, which are increasingly recognised as requiring workplace support and accommodation.

Religious discrimination can involve scheduling conflicts, dress code requirements, or workplace practices that conflict with religious beliefs. Employers have a duty to accommodate religious practices unless it causes undue hardship.

Discrimination isn't always obvious. It can be subtle, systemic, or disguised as legitimate business decisions. Common signs include being passed over for promotions despite qualifications, receiving different treatment from colleagues in similar situations, or facing criticism for characteristics unrelated to job performance.

Pay attention to patterns in how decisions are made. If people with certain characteristics consistently receive less favourable treatment in assignments, training opportunities, or performance evaluations, this may indicate systemic discrimination. Comments about your appearance, accent, family situation, or personal life that seem to influence work decisions are red flags.

Discriminatory behaviour often escalates when challenged. If raising concerns about unfair treatment results in increased scrutiny, isolation, or retaliation, this suggests the original treatment was indeed discriminatory.

Sometimes discrimination is disguised as performance management or restructuring. If you're suddenly subjected to increased monitoring, unrealistic targets, or disciplinary action after a protected characteristic becomes known (such as pregnancy or disability), this timing suggests discriminatory motivation.

Trust your instincts. If treatment feels unfair and seems connected to who you are rather than your work performance, it's worth investigating whether discrimination is occurring.

Thorough documentation is crucial for proving discrimination. Start keeping detailed records as soon as you suspect discriminatory treatment. Note dates, times, locations, people present, and exactly what was said or done. Include your immediate reaction and any witnesses who observed the incident.

Save all relevant communications, including emails, text messages, performance reviews, and written policies. Take screenshots of social media posts or online communications that might be relevant. If verbal comments were made, write them down as soon as possible while the memory is fresh.

Document the impact of discriminatory treatment on your work, career progression, and wellbeing. Keep records of missed opportunities, changes in work assignments, or health effects. This helps establish the harm caused by the discrimination.

Compare your treatment with that of colleagues in similar situations. If possible, gather information about how others were treated in comparable circumstances. This comparative evidence can be powerful in proving discriminatory treatment.

Be careful about how you gather evidence. Don't access confidential information you're not entitled to see, and be mindful of privacy laws when recording conversations or taking photographs. Focus on documenting your own experiences and observations.

Most employers have internal policies for handling discrimination complaints. Check your employment agreement, staff handbook, or company policies for the correct procedure. Following internal processes first can strengthen your position if you later need to pursue external remedies.

Consider who to approach with your complaint. If your direct supervisor is involved in the discriminatory behaviour, go to their manager, HR department, or use any anonymous reporting systems available. Some companies have specific diversity and inclusion officers or ombudsperson roles.

When making an internal complaint, be specific about the discriminatory behaviour, provide dates and details, and explain how it violates company policy or legal requirements. Request specific remedies, such as training, policy changes, or restoration of missed opportunities.

Keep detailed records of your internal complaint process, including who you spoke to, when, and their responses. If the company fails to investigate properly or takes no action, this strengthens any external complaint you might make.

Be aware that making an internal complaint may change workplace dynamics. You're protected from retaliation, but relationships with colleagues and supervisors might become strained. Consider seeking support from employee assistance programmes or external counselling services.

The Human Rights Commission provides a free service for discrimination complaints. You can make a complaint online, by phone, or in writing within 12 months of the discriminatory act. The Commission will assess whether your complaint falls within their jurisdiction and has merit.

The Commission's process typically begins with information gathering, where they'll ask for details about the discrimination and may request information from your employer. They aim to resolve complaints through mediation, bringing both parties together to discuss the issues and find solutions.

Mediation through the Human Rights Commission is confidential and voluntary. A trained mediator helps facilitate discussions between you and your employer to reach a mutually acceptable resolution. Many discrimination complaints are successfully resolved through this process.

If mediation fails or isn't appropriate, the Commission may refer your complaint to the Human Rights Review Tribunal. The Tribunal can make binding decisions and award remedies including compensation, policy changes, and orders to stop discriminatory behaviour.

Throughout the process, you can have support people or representatives present. While you don't need a lawyer for Commission processes, legal advice can help you understand your rights and prepare your case effectively.

If discrimination has resulted in employment disadvantage, you may be able to raise a personal grievance under the Employment Relations Act. This applies when discriminatory treatment leads to dismissal, disadvantage in employment, or harassment.

Personal grievances must be raised within 90 days of the employment action, though this can be extended in exceptional circumstances. The process typically involves raising the grievance with your employer first, followed by mediation through the Ministry of Business, Innovation and Employment.

The advantage of personal grievance procedures is that they can result in reinstatement, compensation for lost wages, and compensation for humiliation, loss of dignity, and injury to feelings. The Employment Relations Authority and Employment Court have extensive powers to remedy employment-related discrimination.

You can pursue both a Human Rights Commission complaint and a personal grievance simultaneously, as they address different aspects of discriminatory treatment. However, you need to be strategic about timing and remedies to avoid duplication.

Personal grievance procedures are more formal than Human Rights Commission processes and often require legal representation, especially if the matter proceeds to the Employment Relations Authority or Employment Court.

Discrimination remedies aim to restore you to the position you would have been in without the discriminatory treatment. This can include financial compensation, reinstatement, promotion, training opportunities, or policy changes to prevent future discrimination.

Compensation typically covers economic losses such as lost wages, missed promotion opportunities, and career advancement. You may also receive compensation for non-economic harm including humiliation, loss of dignity, and injury to feelings. The amount depends on the severity and duration of the discrimination.

Systemic remedies address broader discriminatory practices. These might include mandatory training programmes, policy reviews, diversity initiatives, or changes to recruitment and promotion processes. Such remedies benefit not just you but other employees who might face similar discrimination.

In serious cases, exemplary damages may be awarded to punish particularly egregious discriminatory behaviour and deter similar conduct. These are additional to compensatory damages and reflect the seriousness of the discrimination.

Some remedies are forward-looking, such as agreements about future treatment, references, or career development opportunities. These can be particularly valuable for ongoing employment relationships where you want to remain with the employer.

Consider getting legal advice as soon as you suspect discrimination, even before making formal complaints. Early legal guidance can help you understand your rights, document evidence effectively, and choose the best strategy for addressing the discrimination.

Legal help becomes essential if your employer retaliates against you for raising discrimination concerns, if internal processes are inadequate, or if you're facing dismissal or significant employment disadvantage. Lawyers can protect your interests during these critical periods.

If you're considering both Human Rights Commission complaints and personal grievances, legal advice helps coordinate these processes effectively. Lawyers can ensure you don't miss deadlines or inadvertently compromise one process by pursuing another.

Complex discrimination cases involving multiple protected characteristics, systemic discrimination, or significant financial losses typically require legal representation. Lawyers have the expertise to present compelling cases and negotiate appropriate remedies.

Even if you plan to represent yourself initially, getting legal advice about your case's strengths and weaknesses helps you make informed decisions about whether to proceed and what outcomes to seek.