Susan Hornsby-Geluk: Not all workplace discrimination is illegal

Matching Models in London has been criticised for using sexist language in its job ads.
MATCHING MODELS

Matching Models in London has been criticised for using sexist language in its job ads.

OPINION: In these days of political correctness, we often express outrage in relation to people being discriminated against for various reasons.

You may be surprised though to know that it is perfectly lawful to discriminate on the basis of how a person looks, or whether they smoke, for example.

One recent example that illustrates where the line is drawn involves a London modelling agency, Matching Models. The agency has been widely criticised after it advertised on behalf of one of its clients for a personal assistant.

The advertisement stated that applicants were required to have a "a classic look, brown long hair with a b-c cup".

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In another of its advertisements, Matching Models is searching for a "sexy" female driver.

Restaurant chain Hooters is well known for employing waiting staff who are primarily young attractive women and who ...
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Restaurant chain Hooters is well known for employing waiting staff who are primarily young attractive women and who perform their roles while dressed in revealing outfits.

Clearly there is no reason why a personal assistant or driver requires these qualities in order to perform the core functions of these roles. So it is unsurprising that numerous equality campaigners are up in arms about the advertisements.

One group in particular has described the ads as something out of the 1970s.

The advertisements do however pose an interesting question about when an employer can legitimately introduce requirements for roles which might at face value be considered discriminatory.

The starting point is that there are 13 specific prohibited grounds of discrimination set out in the Human Rights Act. Anything falling outside of this list is effectively fair game.

Further to this, there are a number of limited exceptions provided for in the Act that allow an employer to lawfully treat employees or prospective employees differently on the basis of a prohibited ground of discrimination.

These exceptions include situations involving national security, where a position that is limited to one sex is for the purposes of an organised religion, and the ability to take into account a person's political opinions when considering them for a role that is political in nature.

"It is perfectly lawful to discriminate on the basis of how a person looks, or whether they smoke, for example," says ...
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"It is perfectly lawful to discriminate on the basis of how a person looks, or whether they smoke, for example," says Susan Hornsby-Geluk.

Another of these exceptions relates to situations where for reasons of authenticity, being of a particular age or sex is a genuine occupational qualification for the position or employment.

The obvious scenario to which this exception would apply is in the case of casting roles for a film, television show or theatre production – particularly when it comes to historical adaptations where actors or actresses are asked to portray a real-life figure.

In these situations, the reason why a person's age or sex will be a genuine occupational qualification will usually be obvious.

However, there are other instances where employers have taken the genuine occupational qualification exception too far.

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One interesting example to have come out of the United States that explored the scope of the exception involved the restaurant chain Hooters.

For those who are unfamiliar with this establishment, Hooters is well known for employing waiting staff who are primarily young attractive women and who perform their roles while dressed in revealing outfits.

In 1991, the company was subjected to an investigation by the US Equal Employment Opportunities Commission into whether its practice of only employing young women as waitresses was discriminatory.

Obviously waitering can be undertaken by either sex. However, Hooters attempted to get around this by citing its brand as the reason for only hiring female serving staff.

It said that: "The business of Hooters is predominantly the provision of entertainment, diversion, and amusement based on the sex appeal of the Hooters Girls".

Ultimately the investigation was dropped so there was no definitive conclusion on whether Hooters' policy was in fact discriminatory.

However, a subsequent class action brought against the company resulted in it agreeing to pay US$3.75 million (NZ$5.23 million) and it allowing males to work as bartenders and hosts.

Despite this, it continued to hire only women for server positions.

So far there has not been a lot of case law in New Zealand in the area of discrimination and what may in fact constitute a genuine occupational qualification.

It would be a safe bet, though, that the Human Rights Review Tribunal would take a strict approach to stamping out discrimination where it falls within the prohibited grounds set out in the Act.

Going back to the Matching Models advertisement, it seems unlikely that there could be a legitimate reason for seeking only female personal assistants or drivers.

If, on the other hand, the advert had not restricted the gender of potential applicants, either directly or indirectly by requiring a "b-c cup", but simply sought good looking people, it may still have been distasteful to some, but it would not be unlawful.

Susan Hornsby-Geluk is partner, Dundas Street Employment Lawyers, www.dundasstreet.co.nz

 - Stuff

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