30 S e cti o n ON E – GENERAL Application of the HRA The exceptions in part 2 are both specific and general Part 1A Part 1A applies to the actions of the legislative, executive or judicial branches of Government, as well as to the actions of any person or body performing a public function, power or duty conferred or imposed by law. and have the effect of legitimising behaviour that would An action will be discriminatory under part 1A if it involves a distinction based on a prohibited ground that leads to disadvantage and cannot be justified under section 5 of the BoRA. A limitation will be justified under section 5 if it serves a purpose that is sufficiently important to justify some limitation of the right, is rationally connected to that purpose, impairs the right no more than is reasonably necessary to achieve what it sets out to do, and is in due proportion to the objective it seeks to achieve. 17 one of the prohibited grounds is a characteristic required Part 2 An action will be considered discriminatory under part 2 if a person is treated differently because of a prohibited ground resulting in disadvantage, and a statutory exception does not apply. Part 2 of the HRA deals with services offered to the public by the private sector. It applies only to certain areas: employment (including partnerships, and discrimination by industrial and professional associations, qualifying bodies and vocational training bodies); access to public places and vehicles; the provision of goods and services; the provision of accommodation; and access to educational establishments. The employment provisions in part 2 apply to both the private and public sectors. occupational qualifications or genuine justifications, and Part 2 also includes sexual and racial harassment and exciting racial disharmony. To establish racial disharmony, the material or comment concerned must be not only threatening, abusive or insulting, but also likely to excite hostility against people, or bring them into contempt, because of their colour, race, or ethnic or national origins. The critical factor is whether the material is likely to provoke a reaction in those who hear the words, or read the material. Section 61 must be balanced against the right to freedom of expression. For practical purposes – albeit for good reason – the combination of the criteria in the HRA and the protection of freedom of expression 18 create a threshold that is almost insurmountable. otherwise be discriminatory. ‘Specific exceptions’ apply to particular areas. For example, in the area of employment, there are exceptions for domestic employment in private households, or where to do a job, such as being over a certain age in order to work in a public bar. All the areas include exceptions relating to disability, which permit disabled people to be treated differently if the position could be performed only with adjustments to the workplace, or the work environment is such that there is a risk to the person or others. ‘General exceptions’ apply to the HRA more generally. They include reasonable accommodation, genuine special measures to ensure equality. Reasonable accommodation 19 ‘Reasonable accommodation’ or ‘reasonable measures’ refers to the provision of goods and services and employment. In the employment context it is used to describe changes to a workplace to ensure that a person with a disability, family commitments or religious requirements can do a job. This may be as simple as swapping shifts with another employee to accommodate religious observance, or installing a ramp for a person in a wheelchair. Whether an employer must make such changes is balanced against the unreasonable disruption that may result. If a person requires special services or facilities (for example, relocation of an office) that cannot reasonably be provided, then the employer or service provider is not obliged to provide them. In addition, if there is a risk of harm to the individual or others, but measures can be taken to reduce the risk without unreasonable disruption, then the provider or employer should take those measures. If it is not reasonable to take the risk or the measures necessary to reduce the risk to a normal level are unreasonable, then an employer or provider may be justified in discriminating. 17 R v Hansen [2007] 3 NZLR 1 18 In addition to the civil sanction in section 61, the HRA provides for criminal prosecution under section 131. 19 ‘Reasonable accommodation’ is a term used to describe the creation of an environment that will ensure equality of opportunity for people with disabilities, family commitments or particular religious practices.