HUMAN RIGHTS COMMISSION | A FAIR GO FOR A L L ? accommodation, access to public places, the provision of particular groups to achieve equal outcomes with other goods and services and educational facilities. groups in our society. They are not discriminatory if they The court found that indirect discrimination on the basis of national origin had occurred in the Northern Regional Health Authority case, where a health provider had decided to only subsidise doctors with New Zealand assist people in certain groups to achieve equality. Special measures must be necessary to the group they are aimed at, tailored to the specific disadvantage, carried out in good faith, proportional and temporary.22 qualifications.18 Aside from this case, there have been few Recognising the difficulties states have had with special significant cases on indirect discrimination on the basis of measures, the United Nations Committee for the race, colour and ethnicity. Most have been on behalf of an Elimination of Racial Discrimination put out a new General individual rather than a group. Recommendation on Special Measures in 2009. It stated, 19 Cases taken in other comparable jurisdictions give an indication of what kinds of systemic cases could be taken among other things, that: 16. Special measures should be appropriate to the in the future. One landmark example is Griggs v Duke situation to be remedied, be legitimate, necessary Power Co. (1971) that went to the United States’ Supreme in a democratic society, respect the principles of Court. fairness and proportionality, and be temporary. The This case can be summarised as follows. In the 1950s Duke Power’s Dan River plant had a policy that AfricanAmericans were allowed to work only in its Labor department, which constituted the lowest-paying positions in the company. In 1955 the company added the measures should be designed and implemented on the basis of need, grounded in a realistic appraisal of the current situation of the individuals and communities concerned. 17. Appraisals of the need for special measures should be requirement of a high school diploma for its higher paid carried out on the basis of accurate data, disaggregated jobs. After the passage of the Civil Rights Act in 1964, by race, colour, descent and ethnic or national origin the company removed its racial restriction, but retained and incorporating a gender perspective, on the socio- the high school diploma requirement, and added the economic and cultural status and conditions of the requirement of an IQ test as well as the diploma. African- various groups in the population and their participation American applicants, less likely to hold a high school in the social and economic development of the country. diploma and averaging lower scores on the IQ tests, were selected at a much lower rate for these positions compared to white candidates. It was found that white people who had been working at the firm for some time, but met neither of the requirements, performed their jobs as well 18. States parties should ensure that special measures are designed and implemented on the basis of prior consultation with affected communities and the active participation of such communities. as those that did meet the requirements. The court ruled In New Zealand, special measures have met with that the company’s employment requirements did not resistance. New Zealand society prides itself on its pertain to applicants’ ability to perform the job, and so was egalitarianism and giving everyone a “fair go”, so special discriminating against African-American employees, even measures can sometimes seem like they are unfairly though the company had not intended it to do so.20 giving certain groups special treatment. Researchers James The use of “special measures” One means of addressing structural discrimination is the use of special measures (also known as affirmative action). Special measures are positive actions to assist or protect disadvantaged groups.21 Both the HRA and the New Zealand Bill of Rights Act 1990 recognise that to overcome discrimination positive actions may be needed to enable H. Liu and Caren August note, however, that structural discrimination:   onceal[s] negative affect and maintain[s] c disparity by invoking egalitarian principles that deny structural disadvantages and position minorities as demanding special treatment or violating group norms.23 5