The first legislation to introduce anti-discriminatory principles was the Race Relations Act 1971, followed by the Human Rights Commission Act 1977. These two pieces of legislation affected both private and public sector organisations in New Zealand.
The concept of equal pay for equal work had been introduced in the public sector in the 1960s (Hyman, 1992). The enactment of the Equal Pay Act 1972 legislatively spread this principle to the private sector. While the Act provided for equal remuneration for females when performing work that was substantially similar to males (i.e., work of equal value), as well as equal remuneration for the same jobs, only this more narrow interpretation of the Act was actually enforced in practice (see, e.g., Review Committee, 1979, cited in Hyman, 1992).
Union pressure led to the then Labour Government introducing the Employment Equity Act in 1990, which was subsequently repealed by the National Government in the same year, after the 1990 general election. Section 28 of the Employment Equity Act 1990 required all public sector employers, and private sector employers with at least 50 workers, to develop and implement an EEO programme. The repeal of this Act also removed the sole statutory EEO requirement of private sector employers.
In 1984 central government (i.e., Public Service) organisations pledged to lead EEO development through the Statement by Government Employing Authorities on Equal Employment Opportunities. This statement said:
Indirect discrimination occurs when the outcome of rules, practices and decisions which treat people equally in fact reduce significantly the chances of a particular group of people from obtaining a benefit or an opportunity. This happens because people are not identical. Employing authorities in the government sector have a responsibility to ensure that groups such as women, ethnic minorities and disabled persons can as far as possible achieve equality with other members of the community (SSC, 1995, p. 48).
Little actual EEO progress was made by government organisations, however, until the State Sector Act 1988, which enshrined the principles of EEO into legislation governing the Public Service. As well as the promotion of EEO, the Act also emphasised the Public Service as a good employer and the concept of merit - the employment of the person best suited to the job. Section 56(2) defines a good employer as "an employer who operates a personnel policy containing the provisions generally accepted as necessary for the fair and proper treatment of employees in all aspects of their employment". The Act states a minimum of eight factors that should be included in these provisions:
- good and safe working conditions;
- an EEO programme;
- the impartial selection of suitably qualified people for appointment;
- recognition of the aims, aspirations and employment requirements of the Māori people, and the need for greater involvement of the Māori people in the Public Service;
- opportunities for the enhancement of abilities of individual employees;
- recognition of the aims and aspirations, and the cultural differences, of ethnic or minority groups;
- recognition of the employment requirements of women; and
- recognition of the employment requirements of people with disabilities.
Section 58(3) of the State Sector Act 1988 defined an EEO programme as one "aimed at the identification and elimination of all aspects of policies, procedures, and other institutional barriers that cause or perpetuate, or tend to cause or perpetuate, inequality in respect to the employment of any persons or group of persons". The Act also requires Chief Executives of the Public Service departments to, on an annual basis: develop and publish an EEO programme for their department; ensure compliance throughout their department with the programme; and report on the extent to which their department was able to meet their programme. Thus, each department has the responsibility to ensure its compliance with the State Sector Act 1988. The State Services Commission, through the Act, has an oversight role in monitoring the compliance of departments with the Act, including its own compliance.
This Act came into force on 1 February 1994, replacing the Race Relations Act 1971 and the Human Rights Commission Act 1977. This Act contains 13 grounds for unlawful employment discrimination 2 , and binds all employers, including Public Service departments. The grounds are:
- gender (including pregnancy and childbirth);
- marital status (including de facto or common law marriage);
- religious belief;
- ethical belief;
- ethnic or national origin;
- age (from 16 years);
- political opinion;
- employment status;
- family status (including presence or absence of children, one's relatives); and
- sexual orientation.
The factors in italics were introduced in 1993, so discrimination on any of these six grounds was legal prior to the introduction of the Act.
The Human Rights Act 1993 prohibits both direct and indirect discrimination. Direct employment discrimination occurs when a person is discriminated against on one of the 13 prohibited grounds. An example of direct discrimination is when a person is denied employment or a promotion because of his/her responsibilities for dependents. Indirect discrimination occurs when apparently non-discriminatory practices have the effect of different treatment of a person or group of people. An example of indirect employment discrimination is when an employer's building is not accessible for a person with disabilities.
There are three general grounds on which discrimination on prohibited grounds can be legal. These are:
- Genuine occupational qualification: The employee is required to have a particular characteristic related to job performance that is a prohibited ground. For example, a sexual health doctor may be appointed or refused employment on the basis of gender.
- Reasonable accommodation: The employer must make reasonable efforts to accommodate a person who could be prevented from performing a job because of one of the prohibited grounds. The test of reasonableness depends on the circumstances. For example, the employer may have to ensure that the place of employment is accessible for people in wheelchairs.
- Unreasonable disruption: The employer is not expected to accommodate a person's needs where this would cause unreasonable disruption to the employer's activities. For example, an employer selling plants would not be required to terminate pollen-producing stock to accommodate an employee or prospective employee with allergies.
These exemptions do not apply where the job applicant or employee is the best person for the job (merit principle) and cannot carry out some job duties on the basis of one of the prohibited grounds, but also where those duties could be carried out by another employee without causing unreasonable disruption to the employer.
Both public and private sector employers cannot discriminate on any of the 13 prohibited grounds in the Human Rights Act 1993. Discrimination in employment can occur in hiring, promotion or pay increase processes. As one of the prohibited grounds is gender, the legislative environment in New Zealand does not generally support a gender pay gap. Public Service departments are also subject to the State Sector Act 1988, which has a higher anti-discrimination expectation due to the requirement of these Chief Executives to follow EEO principles. These factors suggest that New Zealand should experience a low effect of discrimination on any gender pay gap, and that the gender pay gap in the Public Service should be lower than the equivalent gap in the private sector.
2 The Act also prohibits discrimination on these grounds in the areas of: education and vocational training; access to places, vehicles and facilities; provision of goods and services; and provision of land, housing and other accommodation.