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New Zealand has made progress but LGBTI employees still face bullying and discrimination

Date: 01/05/2019

Last fortnight I wrote about Israel Folau and expressed the view that he should be fired for deliberately flouting his employer’s rules.  I received a message via LinkedIn from some Australian bloke telling me that he disagreed completely with my opinion, and wanted to know one thing; “are you gay, because that would explain it”.

I declined the opportunity to engage further with this gentleman but it did get me to thinking about how far we have progressed in the area of discrimination on the basis of sexual orientation.

On its face we have come a huge distance since homosexual activity was decriminalised in 1986 and gay marriage was legalised in 2013.   However in the area of employment, people from the LGBTI community are still subject to direct or indirect discrimination on a not infrequent basis.

The law in New Zealand is clearly stated.  Discrimination on the grounds of sexual orientation is prohibited by the Human Rights Act.  There are some exceptions to this, including the employment of domestic help in a private household and the employment of a counsellor on highly personal matters.  Outside of employment, discrimination is not unlawful in the context of shared accommodation.

Discrimination on the basis on sex is also interpreted to include gender minorities (trans or intersex people), and in relation to gender and gender identity.

Yet, despite this, a significant number of LGBTI people say they experience bullying at work or are subject to disadvantage because of their sexual orientation.  Victims of such conduct can complain to the Human Rights Commission or the Employment Relations Authority, but relatively few do.  In this regard complaints and enquiries on the grounds of sexual orientation make up just 2% of all complaints to the Commission.  There are also very few cases that the Employment Relations Authority has determined on this basis.

The reasons for this likely include the shame historically experienced by LGBTI people, and also the difficulty in proving the basis for discrimination.  In employment, decisions around appointment and promotion are often affected by unconscious bias, which can result in indirect discrimination. We sense this is happening, and the statistics prove it, but on a case by case basis it is very difficult to establish.

In New Zealand there have been some reported cases demonstrating the prejudices that still exist. In 2010 the Commission received a complaint from a gay man who was dismissed from a state integrated Christian school in Christchurch.  He was employed by Middleton Grange School as coach of a girl’s netball team but was fired when the Board discovered his sexual orientation. 

The School Principal said the Board had determined that the man’s homosexuality was a problem and he could not continue in the role. The case was settled, reportedly for a pay out and an apology.  The Board was also directed to attend a course on human rights.

The dismissed man, who wanted to remain anonymous, is reported to have said at the time “It’s hard enough to go through finding yourself and being ‘out’ in the first place.  Having to go through discrimination doesn’t help”.

In another case John Smith and Glenn Rankin were dismissed by Customs New Zealand after allegedly leaking information about a gay colleague (Officer “X”) to the press.  The information included statistics showing the number of personal searches of male passengers conducted by Officer X compared to other officers, and the insinuation was that he was misusing his authority for sexual gratification.

The two officers had expressed concerns that Officer X, who they described as “flamboyant”, sought more than his fair share of male strip searches and made lewd comments about male passengers. 

Smith and Rankin challenged their dismissal and claimed that they had not been the source of the leak.  The Employment Relations Authority found that the employer’s investigation had been deficient and ordered reinstatement. The Authority acknowledged that this would place Officer X in a difficult position as he would have to work with them. In weighing up the practicability of this the Authority said that “the reality is that employees hold views about people they work with and some of them may be negative but not everyone is as forthright about them as Mr Smith.”

Whilst there is a fair way to go in New Zealand in ensuring that the anti discrimination laws are effectively applied, we are still significantly ahead of some other countries.  In the United States the Supreme Court has recently been asked to consider whether discrimination on the basis of sexual orientation is even a legitimate cause of action.

To conclude, I did think twice about writing this article, fearing some sort of backlash because I am gay, including criticism that my world view must be skewed. And this demonstrates the struggle that members of the LGBTI community face on a daily basis.  We may think that as a society we have evolved and are now inclusive and accepting of all kinds.  These words are easy to say, but ingrained prejudices and stereotypes are harder to get beyond.