the same or substantially similar qualifications, experience, or skills employed in the same or substantially similar circumstances; or (b) dismisses that employee or subjects that employee to any detriment, in circumstances in which other employees employed by that employer on work of that description are not or would not be dismissed or subjected to such detriment; or (c) retires that employee, or requires or causes that employee to retire or resign.346 Importantly, s 103 (1)(c) and (e) of the Act allows employees to bring personal grievance claims against their employers under the grounds of discrimination or racial harassment. The Court of Appeal in Quilter v Attorney-General established the legal standard for meeting the grounds of discrimination, measuring this disadvantage in comparison to a hypothetical other.347 To succeed in a claim of discrimination, the complainant must prove they suffered different treatment, disadvantage or dismissal due to one of the prohibited grounds outlined in s 105 of the Employment Relations Act or that such grounds were material in contribution to discriminatory treatment by their employers.348 As Reilly notes, the courts have declined to uphold employment discrimination claims on the basis of insufficient evidence.349 However, there have been two successful claims alleging multiple discrimination under s 104(1) the Act, although neither expressly claimed intersectional discrimination.350 One of those decisions was Easterbrook v Cycle and Carriage 50 (City) Ltd, which concerned alleged discrimination on the separate grounds of sex and race and ethnic or national origins.351 In this case, discrimination was found due to the claimant being explicitly told they did not receive a promotion in the workplace due to being Asian and not a man. As the promotion was denied explicitly on two of the prohibited grounds of discrimination in the Act, discrimination was clearly established. However, there was no mention of how these two grounds of discrimination possibly intersected.352 7.2.2 Legal framework for racial harassment The Employment Relations Act 2000 also covers racial harassment specifically, with s 109 stating the elements as follows: … [A]n employee is racially harassed in the employee’s employment if the employee’s employer or a representative of that employer uses language (whether written or spoken), or visual material, or physical behaviour that directly or indirectly: (a) expresses hostility against, or brings into contempt or ridicule, the employee on the ground of the race, colour, or ethnic or national origins of the employee; and (b) is hurtful or offensive to the employee (whether or not that is conveyed to the employer or representative); and (c) has, either by its nature or through repetition, a detrimental effect on the employee’s employment, job performance, or job satisfaction.353 346 Employment Relations Act 2000, s 104(1). 347 Quilter v Attorney-General (1998) 1 NZLR 523 (CA). 348 Such a standard was confirmed and applied by Tipping J in the Supreme Court, see: Air New Zealand Ltd v McAlister (2009) NZSC 78, (2010) 1 NZLR 153 at [49] and [52]. 349 Reilly, “Māori Women, Discrimination and Paid Work,” 330. 350 Reilly, “Māori Women, Discrimination and Paid Work,” 330, citing: Age: Wang v New World Market Ltd (2016) NZERA Auckland 124. Disability: Wang v New World Market Ltd (2016) NZERA Auckland 124. Gender: Terranova Homes & Care Ltd v Service and Food Workers Union Nga Ringa Tota Inc (2014) NZCA 516. 351 Easterbrook v Cycle and Carriage (City) Ltd (WA4/01, WEA3/01, ERA Wellington, 27 February 2001); Reilly, “Māori Women, Discrimination and Paid Work,” 330. 352 Reilly, “Māori Women, Discrimination and Paid Work,” 330. 353 Employment Relations Act 2000, s109.