Turning Equality into Fact: The Status of Comparator Group Analyses in New Zealand Discrimination Law

Abstract

The concept of discrimination is somewhat elusive. Since the enactment of anti-discrimination legislation such as s 19 of the New Zealand Bill of Rights Act 1990, the Human Rights Act 1993 and the Employment Relations Act 2000, the courts have struggled with how to determine when discrimination has occurred. The most recent manifestation was in the Supreme Court decision in Air New Zealand v McAlister [2009] NZSC 78, [2009] 1 NZLR 153. Historically, discrimination has been determined by comparing the claimant with another person or group in similar circumstances. However, this comparative exercise ignores the complexity of discrimination issues, particularly where substantive equality goals require more than merely treating like with like. Consequently, New Zealand needs to allow the courts greater discretion in determining discrimination claims. Further, where comparison is determined to be useful in finding prima facie discrimination, the formulation of the comparator group is problematic. McAlister found that the appropriate comparator group was one which focused on a neutral definition of prima facie discrimination. However, the case does not confirm that approach as universal to all discrimination claims. The application of the test remains heavily dependant on the statutory scheme. The law is thus in a state of confusion and needs to be reformed.