It was recently reported that a majority Māori owned contact centre business Wairua Pai was seeking to employ “100 single Māori mama”.  Owner Rohario Rangihaeata said “It’s about giving back to our community, being of service, and inspiring leadership within whanau through employment”.

She also said “We want our Māori employees to communicate the way they would with whanau over the phone” and that the business wanted to provide options for choosing someone local or able to speak te reo Māori.

The concept of Māori businesses supporting their own into employment would be welcomed by many but does raise legal issues as to when positive discrimination (or “affirmative action” as it is otherwise known) is lawful. This scenario may be inherently uncomfortable for some people who argue that no discrimination is acceptable discrimination.

As a general rule, under the Human Rights Act an employer cannot discriminate against candidates for employment based on various grounds including race, gender and family status.  This situation arguably captures all three.  However, there is an exception where the action is taken in good faith and for the purpose of assisting or advancing a group of people who need assistance or advancement in order to achieve an equal place with other members of the community.

In other words, positive discrimination is not unlawful where it is necessary to achieve equality.

The Human Rights Commission (“HRC”) says in its Guidelines on this subject “Ensuring that people enjoy rights equally will not always involve treating all people the same”.  And further that “To achieve genuine equality it may be necessary to treat people differently, if treating them the same will simply perpetuate existing differences.  The point of special measures is to ensure equal outcomes rather than simply equal treatment”.

There are notable examples of where this has been applied in New Zealand, including the University of Otago’s Mirror on Society Selection Policy which provides for students within special categories to be given preferential entry into the medical school, including Māori and Pasifika students.  The intent of the policy is to promote the advancement of students in these categories to ensure the health sector is more reflective of society, and ultimately to achieve better outcomes for Māori and Pasifika communities.

However, the government has stopped short of relying on this exception to increase the number of women in leadership and director positions within the public sector.  Instead in 2018 it released a plan that included a target for increasing the participation of women in these roles but did not require government agencies to positively discriminate.

Care must be taken when seeking to exercise positive discrimination that the special measure is genuinely necessary to achieve equality – if this threshold is not met, the preference may be in breach of the Human Rights Act.  In its Guidelines the HRC notes that the measure must address the actual disadvantage of the group targeted, and there must be a demonstrable link between the measure and what it seeks to achieve.  It must also be proportionate to the disadvantage and the least intrusive method should be favoured.  The impact on other groups of people must also be considered.

Applying this to the contact centre business seeking to employee 100 single Māori mothers, there could be little argument that this group is underrepresented in employment.  The question then is whether the positive discrimination is necessary, proportionate and the least intrusive means of achieving the desired outcome.

There may be a fine line here.  Clearly supporting single Māori mothers into employment achieves a short term goal for a particular group of people, but it does not address the broader social issue of why this group is underrepresented in employment or “achieve equality” in this sense.  Further the stated objective of Wairua Pai to provide customers with the option of an operator who can speak te reo Māori could equally be achieved by making this a selection criterion, which would be perfectly legitimate.

The bottom line is that positive discrimination has an important place in addressing inequality and providing equal opportunities for all people.  However, it inevitably results in discrimination against another group of people, so should be relied on only where there is a genuine and compelling need.

this article was originally published on 3 May 2023