The Legality Of Positive Discrimination

Published 5 May 2022 | 3 min read

Positive discrimination is a term that may have been the centre of a conversation you have had without realizing. It describes the use of discrimination in such a way as to benefit a perceived minority group. This article written by Lane Neave unpacks the legality of positive discrimination in New Zealand with reference to the Human Rights Act 1993.

In 2021, the BBC advertised for a trainee position “only open to Black, Asian and ethnically diverse candidates”. Perhaps unsurprisingly, the advertisement garnered considerable media attention. While most forms of positive discrimination are illegal in the United Kingdom, the UK Equality Act allows for positive discrimination when hiring trainees or interns in sectors where there is under-representation.

Also known as affirmative action, positive discrimination in recruitment is the act of favouring a candidate based on a prohibited ground of discrimination.

The NZ Human Rights Act 1993 (Act) outlines a number of prohibited grounds of discrimination, including sex, ethnicity and gender. In most cases, employers cannot make a recruitment decision based on a prohibited ground of discrimination. However, section 73 of the Act provides a limited carveout to this general prohibition, whereby employers can take certain measures to ensure equality in their workplace.

Under section 73, discrimination that would otherwise be unlawful is permissible if:

1. Done in good faith;
2. For the purpose of assisting individuals or groups with a characteristic pertaining to a prohibited ground of discrimination; and
3. The individuals or groups in question need (or may reasonably be supposed to need) assistance in order to achieve an equal place with other members of the community.

Australian precedent suggests that in order to determine whether positive discrimination is necessary, an employer should establish a robust understanding of the circumstances affecting the political, economic, social and cultural aspects of the life of the disadvantaged person or group (Gerhardy v Brown (1985) 57 ALR 472 (HCA)). On these grounds, it is foreseeable that an advertisement akin to the one published by the BCC could be considered legal in New Zealand.

Since the enactment of section 73 in 1993, New Zealand has seen positive discrimination used extensively to implement non-employment related initiatives, such as special community programmes to assist disadvantaged groups and targeted selection policies for scholarships and tertiary education providers. By way of example, in 2021 the New Zealand Medical Association announced their new position statement in support of affirmative action selection policies with respect to medical school admissions.

While these non-employment related initiatives are increasingly common in New Zealand, the use of positive discrimination in recruitment has been significantly more limited. Unlike the approach the BCC took in 2021, it would appear New Zealand employers are more inclined to increase diversity through less direct initiatives, such as targeting recruitment campaigns toward under-represented individuals.

By way of example, the 2021 New Zealand Diversity Awards commended the Ministry of Education for their job advertisements explicitly encouraging Māori, Pacific and disabled candidates to apply. Similarly, the awards commended Warren and Mahoney for the effect their recruitment gender diversity targets had on the representation of female employees in their organisation.

In light of the success of these less direct initiatives, the jury is out on whether positive discrimination is necessary to ensure equality in New Zealand’s workplaces. Former Equal Employment Opportunities Commissioner Dr Jackie Blue is unapologetic in her view that without positive discrimination, New Zealand’s progress toward gender equality in private sector leadership will remain abysmal. Conversely, despite implementing diversity targets for leadership roles, the New Zealand Government remains committed to hiring based on merit, rather than using positive discrimination.

While it is clear New Zealand employers are progressively recognising the need to actively promote diversity in their organisations, whether they will adopt the BBC’s more aggressive approach to ensuring equality is yet to be seen.

Positive discrimination and affirmative action initiatives concern a largely untested area of employment law. As such, if you have any concerns about discrimination in your recruitment process, or any other questions, do not hesitate to get in touch with a member of our employment law team.

Click here to read the article by Lane Neave.