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Haupini v SRCC Holdings Limited [2011] NZHRRT 20 (28 September 2011)

Human Rights Review Tribunal of New Zealand

Haupini v SRCC Holdings Limited [2011] NZHRRT 20 (28 September 2011)

Last Updated: 4 October 2011

[2011] NZHRRT 20

Reference No. HRRT 27/2010

BETWEEN CLAIRE HINEKOIA IRENE HAUPINI

Plaintiff

AND SRCC HOLDINGS LIMITED

Defendant

BEFORE THE HUMAN RIGHTS REVIEW TRIBUNAL

Mr R D C Hindle Chairperson
Mr G J Cook JP Member
Mr R Musuku Member

HEARING: 9 & 10 May 2011; 8 July 2011

APPEARANCES:

Ms J M Ryan & Mr D L Peirse for the plaintiff
Mr E St John & Mr J Goodall for the defendant

DATE OF DECISION: 28 September 2011

DECISION

Preliminary

[1] Can an employer ask a Maori employee working in food service at a social function being catered by the employer to cover up a moko which, from the employee’s perspective, is a profound expression of his or her Maori identity? Or does such a request amount to unlawful discrimination contrary to Part 2 of the Human Rights Act 1993?[1]

[2] These questions lie at an intersection between significant cultural expectations on the one hand, and reasonable concerns of an employer to be able to manage the appearance of its staff working in a ‘frontline’ role on the other.

[3] The political idea behind the plaintiff’s case is this:

“Aotearoa New Zealand 2011 is still defining what it is, who we are, where we are going. Culturally, as a nation, we are an ongoing project. The Rugby World Cup looms, and moko is a huge part of the offered cultural experience; it is commercial, exotic, colourful, enduring, unique. Any prohibition is asinine; any venue or event denying access to people with adorned skin deserves to be challenged.[2] A ‘no tattoo’ policy – except in the case of examples which incite racial or religious hatred and sexual abuse – is a pointless and naïve proposition.”[3]

[4] In contrast, the defendant’s position is that this is not a question of freedom of expression, or whether it is fair or unfair to allow an employee to express a cultural or personal belief in the workplace. Instead it contends that none of the prohibited grounds of discrimination were engaged in the particular situation under consideration, and that in any event an employer’s request that a tattoo such as the plaintiff’s be covered for work purposes can be (and in this case was) a proportionate means of achieving a legitimate objective relating to the appearance of staff.

[5] There has been some public interest in the issues; indeed at one point during the hearing a broadcaster went so far as to set up a website inviting members of the public to effectively ‘vote’ as to what they thought the answer in the case should be.[4]

[6] In the circumstances we think it important to begin by making it clear that it is not our role to decide what the outcome of popular debate on these issues should be, or to purport to stipulate in any way what the ‘right’ answer is.[5] Our responsibility is to apply the relevant provisions of the Act to the facts as we have found them, and that is all.

[7] Even in doing that, the focus of the matter before us is very narrow. This is not, for example, a case about access to public places, vehicles or facilities; it is not a case about the provision of goods and services; and it is not a case about access to educational establishments or to housing or accommodation, or anything of those kinds. Our decision has nothing to say about the human rights implications of tattoos in those settings. In fact it is not even a case that applies to all employment situations, or all tattoos. The case is about the relationship between an employer and an employee who had a treasured moko on her arm, and a ‘front of house’ service role. We approach the issues in that limited context.

[8] We begin by setting out the facts of the case.

The facts

[9] Although there were pockets of disagreement in the evidence, the facts that are most important to what we have to decide are straightforward and largely undisputed.

[10] The plaintiff is of Maori and European descent; her iwi is Whakatohea and her hapu is Ngati Awa. Her family also affiliates with Ngapuhi.

[11] The plaintiff has a moko on her left forearm. Given what is at issue, we include a photograph of the work as appendix A to this decision. The photograph explains elements in the design in more detail.[6] We also think that the tattoo was aptly described by Professor Te Awekotuku. Professor Te Awekotuku is an acknowledged expert on moko, tattoos and their role in contemporary New Zealand culture. She described the plaintiff’s moko as being ‘fiercely Maori’ but added:

“ ... it also represents elements of the Aotearoa New Zealand visual landscape that we encounter every day. So one immediately thinks of the Air New Zealand logo of different crests and our visual symbols of government departments. It incorporates a number of design elements that are part of the national consciousness that are part of what we see in advertising in television, through the popular media.”

[12] The plaintiff made the decision to have her moko carved very carefully. She took time in choosing the artist, and in selecting the designs to be used. The moko she wears on her arm speaks of those who have come before her and those who will come after her; its designs represents her, her children and her husband; and they also evoke her iwi Whakatohea as well as Ngapuhi, where her grandparents were laid to rest. For the plaintiff, the moko on her left forearm is a most profound expression of who she is.

[13] There can be no suggestion that the moko on the plaintiff’s arm is offensive in any way (certainly the defendant company[7] did not say that it was).

[14] Towards the end of 2009 the plaintiff was employed by the company as a casual worker. The company is in the business of catering for social functions. The plaintiff was employed to help prepare for such functions, and to set up, serve and the tidy up after functions. It was a ‘frontline’ role, in the sense that she and her co-workers at any function were in direct contact with the company’s clients; they were in effect the ‘face’ of the company. We add that the company employed people from a variety of ethnicities, including Maori, to do work of this kind.

[15] When the plaintiff first started working for the company she was issued with a standard three-quarter length black shirt. The shirt covered all but the tip of the moko on her left forearm. However the plaintiff makes no complaint about this, because the shirt was the same as that being used by other staff members. The fact that it all but covered her moko did not upset her, because she did not feel that she was being treated any differently than the other staff.

[16] In or about March 2010 the company introduced a new short sleeved shirt, with the company’s logo embroidered on it. When wearing this shirt, the whole of the plaintiff’s moko was visible.

[17] The plaintiff worked at least three shifts after the new shirt was introduced (and thus with her moko uncovered) without any incident.

[18] On 17 May 2010 the plaintiff was employed for a function which Mr Peet, a director of the company, described as being at the top end of the kinds of functions for which the company caters. Most of those who were to be working at the function that day were wearing the short sleeved shirts, although it seems that one or two staff members may have been wearing the three quarter length sleeved-shirts as a matter of their personal preference.

[19] Before the vans left the company’s yard to go to the function venue, Mr Peet noticed the plaintiff’s moko. He felt that company staff should not be displaying what he described as a large prominent tattoo at the function in question – which was to be a corporate event for an important client. He asked the company’s Operations Manager Mr Brough to discuss the matter with the plaintiff, and see if she would mind wearing a three quarter length shirt to cover the tattoo. Mr Peet said that this was a request only and not an order; he said that if the plaintiff had declined he would not have pressed the matter any further.

[20] Mr Brough took the plaintiff aside from other staff who were waiting to leave for the function. He politely asked her if she would mind wearing one of the three quarter length sleeved shirts, of the kind she had been issued when she first started working for the company. He told her that this would be to cover her tattoo. He did this without in any way denigrating her tattoo.[8] He explained to us that he did not direct her to put on the new shirt; he only asked her. He said that if she had refused he would have taken her concerns back to Mr Peet to discuss the position. He would not have insisted that she must wear the longer sleeved shirt.

[21] From this point the perceptions of what happened differ, but not because any of the witnesses were not giving an account of events that was faithful to their recollection. It is just that each had very different perspectives.

[22] For her part, the plaintiff saw the request as treating her differently from all the other employees. While one or two of the others may have been wearing three quarter length sleeves by choice, most were wearing the branded short sleeved shirts. She alone was being asked to wear a three quarter sleeved shirt, the reason being to cover her moko. And, even if it was just a request, it was clear to her that the request had come from the company director Mr Peet.

[23] Although both Mr Peet and Mr Brough said they would not have pressed the matter if the plaintiff had objected, we can understand that would not necessarily have been clear to the plaintiff. What she knew was that a company director wanted her to change her shirt to cover up her moko. Clearly Mr Peet had felt strongly enough about it to have Mr Brough ask her to change. The plaintiff was a casual worker. We think it would have been inherently difficult for anyone in her position to object without some concern that, by doing so, she might be jeopardising her chances of getting more work in future. So, while we accept the evidence of Mr Peet and Mr Brough that they would not have insisted if the plaintiff had objected to wearing the longer-sleeved shirt, at the same time we also accept that, from the plaintiff’s point of view, the request probably did seem like an instruction.

[24] The plaintiff said that she was ‘stunned’ when she was asked to change her shirt. Even so, her immediate reaction was one of some sympathy for the position Mr Brough was in. She saw him as being the messenger only. She understood that ultimately it was Mr Peet who wanted her to change her shirt.

[25] However the plaintiff also felt a sense of responsibility to do what she had been employed to do that day, and not to let her co-workers down. So, despite her inner feelings, she agreed to change her shirt. Mr Brough then went and ironed a three quarter length sleeve shirt for her, and she changed into it before leaving with other staff in one of the vans for the function.

[26] There was evidence from the plaintiff and several of her co-workers that day about how upset these events had made her. The plaintiff told us that she had cried when she had to explain to others what had happened; and that she felt angry, distressed and humiliated by the request to cover her moko. Some of the co-workers remembered her distress that day; but others did not. Overall, we think the evidence shows that the plaintiff was upset, and that some but not all of her co-workers observed her unhappiness and understood the reason for it. At the same time, there is no suggestion that the plaintiff did not carry out her responsibilities at the function in a professional way. Again, we think the evidence reflects the fact that, to the extent that they were aware of what had happened at all, each of the witnesses we heard from had different perspectives on the events. We accept, however, that the plaintiff was upset to the point of being in tears on several occasions that day.

[27] At the same time we find that none of this was clear to Mr Brough. To the contrary, Mr Brough’s recollection was that the plaintiff had agreed to change her shirt, and that as far as he was aware she had seemed happy to do so. When he was ironing the replacement shirt for her they had chatted as though everything was normal. Mr Brough said that the plaintiff did not give him any indication at the time, or after the function, that she was upset.

[28] Mr Peet was not aware of the plaintiff’s feelings at the time either. From his perspective, the plaintiff had been asked to change her shirt, and she had agreed to do so without objection. He thought that was the end of the matter.

[29] It is common ground that, before the plaintiff left work that day, Mr Brough asked her if she wanted to work again in the coming weekend.[9] The plaintiff declined. Although she told us that was because she was angry and upset about having had to cover her moko, she did not tell Mr Brough that. He was left unaware of her true feelings about what had happened.

[30] We note the plaintiff’s evidence that she would not have objected to the request that her moko be covered up if it had not had any cultural significance for her. We also take it from her evidence that – despite the profound cultural significance of her moko to her - she would not have objected if this had been a request from the company to all staff working at that function to wear the longer sleeved shirts (say, in the interests of staff presenting in a more uniform way). If the requirement to wear a long sleeved shirt had been applied generally, the plaintiff would have had no issue with it.

[31] We deal with the legal issues below, but we note here that in this respect this case is different from the general run of cases that we were referred to in argument. Typically, the cases have involved situations in which the application of a general rule (say, a rule that no veils are to be worn in a school) conflicts with a particular practice (say, a religious expectation or requirement that relevant followers of the religion in question must be veiled). A plaintiff usually asserts that the general rule has to be limited in some way, so as to allow him or her to follow his or her religious beliefs. But the plaintiff’s evidence in this case makes it clear that she had no expectation that her moko should always be visible. Indeed she is not even saying that she should have had a choice in the matter; as long as all employees were expected to wear the long sleeved shirts, she would have done so without complaint and notwithstanding that her moko would have been covered. Her only complaint is that she was singled out when she was asked to wear the long sleeved shirt to cover her moko, while no other employees working at the 17 May 2010 function were asked to wear long sleeved shirts.

[32] In any event, the plaintiff went home after the function was over. She said that by then she was furious with both Mr Peet and Mr Brough. She found the website for the Human Rights Commission, and made her complaint through the website on 18 May 2010. Her complaint was that she had been a victim of racial discrimination and harassment. She described the events we have set out, although in her statement she said that Mr Brough had told her of various statements by Mr Peet, including to the effect that he (Mr Peet) was ‘having a spack’ about the tattoo.

[33] The Human Rights Commission contacted Mr Peet, initially by telephone and then by letter dated 27 May 2010. Mr Peet said that the complaint came as a considerable surprise to him: it was not until the contact from the Human Rights Commission that anyone at the company realised the plaintiff had had any problem with the request on 17 May 2010 to change her shirt. Mr Peet asked his two Operations managers (one of whom we assume to have been Mr Brough) whether they had ever been told that the tattoo was ta moko or had any cultural significance. Neither they, nor any of the other staff members Mr Peet spoke to, were.

[34] Since then the matter has been the subject of an unsuccessful attempt at mediation, and of course these proceedings in the Tribunal.

[35] To complete the picture, we should say that at the hearing in the Tribunal the plaintiff spoke of the distress that she had suffered on the day. She also said that, since then, she has been left feeling self-conscious about her moko, and worried that someone might be talking about it behind her back. She said she did not want to work again in case something similar happened. She told us her confidence has been affected. Her husband’s evidence effectively corroborated what she said, and he added that she has been much quicker to wear long sleeved clothing since, in order to cover her moko.

[36] As noted, there were some areas of disagreement in the evidence. For the most part we think they are explained on the basis that the witnesses had such very different perspectives of events. There are, however, three matters we think we should deal with here:

• [a] The first relates to exactly what it was that Mr Brough said to the plaintiff when he asked her to change her shirt. She told us that Mr Brough gave her the impression that Mr Peet was rather angry and worked up about it. She said that Mr Brough had told her that Mr Peet was ‘having a spack’[10] about it, and had said words to the effect that she should never have been hired with her tattoo. She told us that Mr Brough was very sorry about having to be the bearer of those views.
  

The difficulty with this evidence, however, is that the plaintiff did not hear anything that Mr Peet said about her moko at all, and both Mr Peet and Mr Brough vigorously denied the plaintiff’s allegations. In addition, the suggestion that she should never have been hired with her moko is in conflict with the fact that she worked several shifts in a short sleeved shirt without any incident.

There was at least the spectre of a possible challenge to Mr Brough’s credibility (which we deal with in the next sub-paragraph), but there is no basis on which to accept the plaintiff’s hearsay account of the words said to have been spoken by Mr Peet, but which both Mr Peet and Mr Brough denied. We therefore accept Mr Peet’s evidence that he had not noticed the plaintiff’s tattoo before 17 May 2010. We reject the suggestion that the plaintiff would not have been hired at all if the company had known of her moko.

[b] A second point relates to Mr Brough’s credibility as a witness. This is particularly relevant to the plaintiff’s assertion that, at some point early in her employment by the company, she had explained to Mr Brough in detail what her moko was and all that it represented. She said that Mr Brough had expressed interest, and was respectful about her moko. The important point was that Mr Brough (and, at least through him, the company) knew or ought to have been aware of the significance of the plaintiff’s moko to her before the events of 17 May 2010 took place. But in his evidence Mr Brough said that no such conversation had ever taken place, and he described the suggestion of such a conversation with the plaintiff as being ‘an invention’.

This was an irreconcilable difference in the evidence.

During the hearing we expressed some concern that the examination of Mr Brough’s evidence had fallen short of laying any proper foundation on which we might fairly conclude that he was not giving honest evidence when he denied the conversation. Looking now at the evidence as a whole, we cannot see that there anything about the evidence that Mr Brough gave generally; his demeanour in giving his evidence; the contemporaneous documents; or any other aspect of the case, to justify a decision that his evidence was not reliable. And, as Mr St John observed, by the time that the case came on for hearing in the Tribunal Mr Brough was not working for the company any longer. He had nothing to gain or lose in any personal sense in giving his evidence. In contrast (and while we are not suggesting that the plaintiff’s evidence was not honestly given) there were aspects of what she told us that proved to be a little unreliable on examination, particularly in relation to such basic issues as how long and when she had worked for the company. Overall our conclusion is that, where they conflict, Mr Brough’s evidence is to be preferred to that given by the plaintiff.

We therefore approach the legal analysis on the basis that – beyond having seen the moko – none of Mr Peet, Mr Brough or the company had an appreciation of its significance to the plaintiff when the events of 17 May 2010 unfolded.

[c] The third point is not about the evidence, as much as it is about the way in which the issues arising out of these events were discussed in submissions.

It was convenient at points in the argument to speak of what the consequences of a ‘rule’ against moko and/or tattoos might be. Although we also adopt the same terminology at points in the discussion below, it is as a matter of convenience for the purposes of the legal analysis only. On the evidence in this case the company did not have any such rule or policy. To the contrary, there was some evidence that another worker on a different occasion had been asked to cover up a tattoo (although that tattoo was not suggested to have the kind of significance which the plaintiff attached to her moko). But all that really established was that the company was not averse to hiring people with visible tattoos. There is no reason for us to conclude that the events of 17 May 2010 relating to the plaintiff’s moko were anything more than an isolated event.

The legal basis for the claim

[37] The plaintiff’s claim of direct discrimination relies on ss.22(1)(b) and 22(1)(c) of the Act, which relevantly provide:

“22 Employment

(1) Where an applicant for employment or an employee is qualified for work of any description, it shall be unlawful for an employer, or any person acting or purporting to act on behalf of an employer,—

(a) to refuse or omit to employ the applicant on work of that description which is available; or

(b) to offer or afford the applicant or the employee less favourable terms of employment, conditions of work, superannuation or other fringe benefits, and opportunities for training, promotion, and transfer than are made available to applicants or employees of the same or substantially similar capabilities employed in the same or substantially similar circumstances on work of that description; or

(c) to terminate the employment of the employee, or subject the employee to any detriment, in circumstances in which the employment of other employees employed on work of that description would not be terminated, or in which other employees employed on work of that description would not be subjected to such detriment; or

(d) to retire the employee, or to require or cause the employee to retire or resign,—

by reason of any of the prohibited grounds of discrimination.

[38] The grounds of discrimination said to apply here are those in ss.21(1)(f) and (g) of the Act, namely race and/or ethnic or national origins. In essence, the argument for the plaintiff is that she was afforded less favourable conditions of work, and/or that she was subjected to detriment in her work to which other employees were not subjected, because she is Maori. The less favourable terms/ detriment to which she was subjected was that, unlike all other workers at the 17 May 2010 function, she was asked to wear a shirt to cover her moko. As we have explained, the plaintiff’s moko is, for her, a most profound expression of who she is.

[39] In the alternative, the plaintiff contends that the company’s requirement that she should cover her moko was an act of indirect discrimination in the sense that any rule against visible tattoos has the effect of treating wearers of ta moko unfavourably on the grounds of their race and/or ethnic or national origins. In this respect her claim relied on s.65 of the Act:

“Indirect discrimination

Where any conduct, practice, requirement, or condition that is not apparently in contravention of any provision of this Part has the effect of treating a person or group of persons differently on 1 of the prohibited grounds of discrimination in a situation where such treatment would be unlawful under any provision of this Part other than this section, that conduct, practice, condition, or requirement shall be unlawful under that provision unless the person whose conduct or practice is in issue, or who imposes the condition or requirement, establishes good reason for it.”

[40] Section 65 provides a ‘good reason’ defence; that is, even if a practice amounts to indirect discrimination on a prohibited ground of discrimination it may nonetheless not be rendered unlawful by s.65 if good reason for the practice is established.

[41] We deal with each of these in turn.

The claim for direct discrimination

[42] Counsel on both sides provided full submissions on the application or potential application of s.22 of the Act in this case.

[43] One immediate difficulty for the plaintiff, however, is that the evidence makes it clear that - both generally, and on 17 May 2010 in particular - the company employed other Maori people to work for it, and it did not ask them to wear the longer sleeved shirts.[11] We find it difficult to see how a claim for direct discrimination on the basis of the plaintiff’s race, ethnic or national origins can be established in the circumstances. To the contrary, the evidence seems to us to emphasise that the problem from the company’s point of view was not the plaintiff’s race, ethnicity or national origin, but the fact that she had a tattoo on her forearm.[12]

[44] That then gives rise to the question: can a particular kind of tattoo have such a strong affinity with a given race, ethnicity or national origin that the tattoo is effectively to be treated as being synonymous with that race, ethnicity or national origin?

[45] It was the case for the plaintiff that a rule against moko is a rule against race, ethnicity or national origin because there is just such a connection between moko and Maori. Again, however, there are practical difficulties for the plaintiff in the evidence.

[46] During the hearing there was a very helpful discussion between Mr St John as counsel for the company and Professor Te Awekotuku on these issues. We have taken the following propositions from that evidence:

• [a] Moko is not an art form that is exclusive to Maori. It might be worn (just to give one example) by young New Zealanders – Maori and Pakeha[13] - who travel overseas and who take moko with them as a living reminder of their home;[14]
  
• [b] There is debate amongst artists, wearers and admirers of tattoos including moko as to whether an identical design on a Maori person and on (say) a Pakeha person is properly called ‘moko’ in both cases. In Professor Te Awekotuku’s assessment, however, where a Pakeha person wears such a design to tell his or her story (just as the plaintiff in this case does by wearing her moko to tell her story) then that is no less valid than when worn by a Maori person;
  
• [c] Some Maori people (although Professor Te Awekotuku suggested only a very small minority) wear moko without appreciating its cultural significance;
  
• [d] The description of any given design as being ‘ta moko’ or not is highly subjective.
  

[47] Furthermore, although the Professor argued that there should be wide acceptance of tattoos[15], she acknowledged that there can and should be restrictions on the display (for example) of tattoos that incite racial or religious hatred or sexual abuse. We do not want to suggest that tattoos of that kind could ever legitimately be described as moko, but the point does emphasise the very subjective nature of how tattoos are to be categorised. As Professor Te Awekotuku said, there is no simple rule that can be applied; it is necessary to look at each piece of work on its own and make a personal judgement about whether what is being worn can be described as moko or not.

[48] We do not exclude the possibility that some skin markings may be so clearly evocative of, and connected to, a particular racial or ethnic group that the marking is of itself sufficient to identify a person as being of that group, and that the marking is worn for that reason, and only (or at least predominantly) by that group for that purpose.[16] But on the evidence in this case, we do not accept that the moko on the plaintiff’s left forearm falls into that category. We do not mean to disrespect it, or to diminish its significance to the plaintiff, but the reality is that a design of the kind she wears might be worn by someone of non-Maori descent. Nor was there any suggestion that having moko of the kind that is on the plaintiff’s arm is in any sense a requirement or expectation for people of Maori ethnicity, or that the identity of any Maori person in terms of his or her ethnicity, or racial or national origins, is in any way diminished because the person does not wear moko.

[49] All in all, we do not agree that the connection between the particular moko which is at issue in this case and the plaintiff’s race, ethnicity and/or national origin was so close and so obvious that Mr Peet’s request that it be covered up can be judged to have been an act of direct discrimination against the plaintiff because she was Maori. Instead we accept Mr St John’s submission that the correct comparator question in this case asks: what would the company have done that day if the plaintiff had been wearing the same or a similar design but had not been Maori? There is nothing to satisfy us that its attitude would have been any different.

[50] Counsel for the plaintiff reminded us of the need to approach the interpretation of the section in a purposive way, recognising the special character of human rights legislation.[17] We were also referred to various international covenants and treaties said to have a bearing on the issues[18], and to a number of cases in other jurisdictions which have dealt with challenges to school rules for uniforms on the grounds of religious discrimination[19]; the braiding of hair into cornrows[20]; wearing of turbans[21], headscarves[22], ceremonial daggers,[23] and hard hats.[24] We were also referred to two cases from the United States of America which dealt specifically with tattoos: Equal Opportunity Commission v Red Robin Gourmet Burgers Inc[25] and Riggs v City of Fort Worth.[27]

[51] Although we can see that there are some exceptions, if one thing emerges from the run of these cases it is that, when issues of this kind are raised, then by and large they are better approached as cases about indirect discrimination rather than direct discrimination. Certainly that is our sense of this case as well.

[52] Before dealing with that aspect of the case, we add a footnote to this discussion about direct discrimination. Cases from other jurisdictions must always be approached with care, because the detail of anti-discrimination statutes differs so much from country to country. Of particular relevance here, it needs be recognised that some anti-discrimination regimes explicitly protect against discrimination on grounds of culture. To give just one example, s.9(3) of the South African Constitution prohibits unfair discrimination by the State on grounds including “ ... ethnic or social origin, colour, ... conscience, belief, culture, language and birth.” The Promotion of Equality and Prevention of Unfair Discrimination Act 2000 extends the reach of those provisions beyond the State to private parties as well: see for example MEC for Education: Kwazulu Natal & ors v Pillay[29]. But in contrast neither of the New Zealand Bill of Rights Act 1990 nor the Human Rights Act 1993 include culture as a prohibited ground of discrimination.

[53] If culture were a prohibited ground of discrimination expressly provided for in the New Zealand legislation then the plaintiff’s claim for direct discrimination might have had a better prospect of success. But culture is not a ground on which discrimination is prohibited in in this country. Whether that is as it should be is for the Legislature to determine, not this Tribunal. And, until the legislation is changed, the limits must be respected. As a matter of principle we think it would be wrong to squeeze what is really a claim for direct discrimination on the basis of culture into concepts of race and/or national or ethnic origin. Even the most generous and liberal of interpretations of those words cannot add a ground of discrimination which is not listed in s.21 of the Act.[30] As the High Court said in BHP New Zealand Steel Limited and Anor v O’Dea:[31]

"In the present case the question is not whether the [international] covenants conflict with the Human Rights Act nor whether they should effectively override the Act. Rather it relates to the extent to which the provisions of the Human Rights Act can be interpreted so as to more comprehensively adopt or implement applicable international standards.

In our view the Court cannot ignore the fact that the New Zealand Parliament in the Human Rights Act has chosen to incorporate into domestic law only some of the rights recognised in various international covenants and conventions. In those circumstances the Court cannot use the generality of provisions in the international instruments to increase the scope of what our sovereign Parliament has decided should apply domestically. Further, although in a sensitive and important area such as this words should not be read down, where Parliament has deliberately provided protection for some rights which enjoy international recognition, but not others, it would be wrong for a Court to stretch or manipulate the clear words of a statute so as to provide protection in a greater or different area than Parliament has determined should apply. Where there is any room for interpretation the international obligations will be given full weight. But in the absence of uncertainty or ambiguity the Courts are not able to introduce into domestic law rights which are beyond the scope of a reasonable and sensible interpretation of the actual words of the relevant statute".

Indirect Discrimination

[54] As we have noted above, this case differs from others we were referred to, in which the defendant is looking to uphold a general rule in the face of a challenge that, unless an exception is made, it infringes rights that are protected by the relevant anti-discrimination legislation.[32] Furthermore s.65 only applies if there is shown to have been a ‘... conduct, practice, requirement, or condition ...’. For reasons given, what happened on 17 May 2010 was a spontaneous and isolated event.[33] The evidence of both Mr Peet and Mr Brough was that if the plaintiff had voiced any concern at all, then they would not have insisted that she wear long sleeves.[34] In the circumstances it is not entirely clear to us that the incident falls within the words ‘... conduct, practice, requirement, or condition’ in s.65 of the Act.

[55] However that point was not a particular focus in the submissions and, as we have explained above[35] we can see that the request was understood by the plaintiff as a requirement. As a result we put aside potentially difficult questions about whether the assessment of the evidence on this aspect should be approached subjectively (and, if so, whether looking at the problem from the plaintiff’s point of view, or the defendant’s point of view) or whether a more objective inquiry is required. Instead we give the plaintiff the benefit of any doubts, and will assume that when Mr Brough asked her to change her shirt on 17 May 2010 that was at least a ‘requirement’ sufficient to bring s.65 into play.

[56] As with the argument in respect of direct discrimination, again we received detailed and helpful submissions as to what the purpose of s.65 of the Act is, and how we should approach its application in this case. Counsel for the plaintiff recognised that it was the plaintiff’s obligation to satisfy is that:

• [a] the defendant had a requirement (for reasons given, we are willing to assume in favour of the plaintiff that this limb of the enquiry is satisfied in this case); and
  
• [b] the requirement had the effect of treating the plaintiff differently on account of her race and/or ethnic or national origin; and
  
• [c] the treatment would be unlawful under s.22(1) of the Act.
  

[57] In respect of element [b], counsel on both sides drew our attention to the helpful analysis provided by Ms Selene Mize of the University of Otago in her 2007 article ‘Indirect Discrimination Reconsidered’.[36] Of particular relevance here, both counsel invited us to adopt the approach suggested by Ms Mize - namely that in assessing the effect of the requirement at issue we should look to see whether it has or has had a significant disproportionate negative effect on the group said to be disadvantaged by it (in this case, Maori people).

[58] We do so willingly; with respect, we regard the analysis given by Ms Mize as being correct in principle, and we think her suggested approach is appropriate in this kind of case. We are indebted to her for the analysis she has provided. Furthermore, given that the Tribunal and counsel on both sides all agree with her approach to assessment of ‘disproportionate negative effect’, we think it sufficient to refer to her article in this decision. Ms Mize has explored the relevant cases in detail and we cannot see that there is anything much to be gained by repeating that work here.

[59] The question for us in this case, then, is whether the requirement that the plaintiff should cover her moko was one that had a significant disproportionate negative effect on her because of her race and/or ethnic or national origin.

[60] For the defendant, Mr St John submitted that the assessment is not (or ought not to be) a guess: a plaintiff wanting to establish such a thing must bring evidence to show how and in what way a requirement to cover a tattoo impacts on Maori people in a way that is significantly disproportionate to the impact for people of other races, ethnicities and/or of other national origins.[37] As Ms Mize has put it:

“For there to be significantly disproportionate negative effect, sufficient to comply with the statutory requirement that the practice or requirement have the effect of treating one group differently on a prohibited ground of discrimination, three requirements must be satisfied. First, the experiences of the groups, in terms of experiencing positive or negative effects, must be significantly different. Second, there must be statistical or other evidence suggesting that the disparity is real and not merely coincidental. Third, the negative effect that is experienced must be significant and not trivial.”[38]

[61] Counsel for the plaintiff acknowledge that there is no such evidence available to us in this case.[39] Instead they have asked us to proceed on the basis of judicial notice – that is, they submit that the facts the plaintiff wishes to rely on in this respect are so widely and generally known that every ordinary person may reasonably be presumed to be aware of them.[40] As we understood the argument, the essential propositions that we are asked to take judicial notice of were expressed as follows:

“The defendant’s requirement or condition affects the plaintiff’s mana. Maori experience the rule as disrespectful of their whakapapa, cultural tradition and custom. A non-Maori person would not experience such detriment as a result of a ‘no tattoos’ policy.”

[62] Taking each of these propositions in order:

• [a] We have no difficulty accepting the first proposition, at least insofar as it states how the requirement affected the plaintiff in the specific circumstances of this particular case.[41]
  
• [b] The second proposition puts up a very wide generalisation indeed (i.e., Maori experience the rule as disrespectful of their whakapapa, cultural tradition and custom). That may very well broadly be true, but we hesitate before accepting it without better evidence. We suspect much would depend in any given case on what the moko is, where it is placed on the wearer’s body, and a host of external factors (such as what the occasion is that is said to justify a request to cover the moko). The attitude of the individual wearers must also be relevant. Certainly given Professor Te Awekotuku’s evidence that there are at least some Maori who have moko but do not appreciate its cultural significance, we are troubled about accepting a very generalised proposition on a judicial notice basis. We simply do not know what proportion of Maori people would regard a request to cover up such a moko for the limited purpose of serving at a high end function in a front line role as being disrespectful of their whakapapa, cultural tradition and custom. To emphasise: that is not to say that the general proposition is wrong. Our concern is that we do not think it is a proposition we can properly assume to be true without evidence;
  
• [c] The third proposition (‘A non-Maori person would not experience such detriment as a result of a ‘no tattoos’ policy ‘) is even more difficult. The suggestion overlooks the many non-Maori traditions and cultures for whom tattoos are also an important marker of race, ethnicity and/or national origin. The idea that only Maori would or could experience detriment of the kind suffered by the plaintiff in this case attributes to other cultures and ethnicities an indifference to these things which we are not willing to accept (certainly not on a ‘judicial notice’ basis). And, again, the proposition seems to us to be at odds with the evidence that Professor Te Awekotuku gave. She fairly acknowledged that there are non-Maori who people also wear tattoos as a profound expression of their identity.[42] As the discussion unfolded, she also agreed that even a pakeha New Zealander who wears a tattoo that is emblematic of New Zealand may fairly be described as having moko, and that such a thing is no less valid for that person than is a moko worn by a Maori person.
  

[63] We decline to take judicial notice of the suggestion a non-Maori person would not experience detriment in the sense of disrespect of their whakapapa, cultural tradition and custom as a result of a ‘no tattoos’ policy.

[64] That being so, the plaintiff’s evidence in this case is insufficient to establish that there is a disproportionate negative effect on Maori in being asked to cover a tattoo of the kind in question in this case, and in the circumstances in which the plaintiff was asked to cover the moko on her arm on 17 May 2010. The plaintiff has failed to show that the request made by the company in the circumstances that applied in the particular situation (and having regard to the tattoo that was of concern) amounted to indirect discrimination against the her.

[65] That conclusion is enough to dispose of the case. However in the submissions we received there was also some discussion about the availability of the defence that is provided for by s.65 – namely, that even if indirect discrimination had been established the company would escape liability under s.65 if it could show that it had good reason to make the request.

[66] In view of our conclusion that there no indirect discrimination has been established we hesitate to say too much about this issue. We think it involves a difficult balancing of competing but legitimate concerns and interests. Certainly if indirect discrimination had been established then the company would have had the burden of justifying what it did. But as noted at the outset, this is not a case about access to public facilities or goods and services, or to education facilities, or anything of those sorts. It is a case about a request that was made in the context of an employer/employee relationship, by an employer who was concerned about the appearance of its staff when catering for an important function that it (the company) had been contracted to cater for. The request was only that the moko be covered while the function took place; it was not a general direction to cover the moko for all future events. The evidence is that the plaintiff was offered more work even after the company became aware of her moko.

[67] As Ms Mize notes in her article, in a case of this kind the ordinary meaning of the words ‘good reason’ does not suggest that there ought to be an unduly stringent standard applied.[43] Here:

• [a] there was no discriminatory intent behind what happened;
  
• [b] the company had a rational business-related reason for asking that the moko be covered;
  
• [c] asking the plaintiff to wear the long sleeved shirt was an effective way of dealing with the company’s concern;
  
• [d] because the plaintiff made no complaint at the time the company was not aware of any need to look for alternatives to dealing with the concerns it had (in fact, if the plaintiff had complained likely the request to cover up would have been dropped); and
  
• [e] the request that the moko be covered was for one function so any discriminatory effect was for a limited time only.
  

[68] There is certainly room for a view that the company did have ‘good reason’ to ask that the moko be covered, sufficient to bring the defence in s.65 of the Act into play. In the end, however, we express no final view on that issue. We think it is enough to say that indirect discrimination has not been established. Beyond that, and as we hope will be clear, in these cases the context is everything. We doubt that the experience of what happened in this case has anything much in the way of precedent value. A decision that the company here either did or did not have good reason to ask the plaintiff to wear long sleeves on 17 May 2010 will do little to inform the assessment of any other case in future.

[69] Our final note goes back to the point we made at the beginning of this decision. We understand that some will think that the request to cover up was unnecessary and even unfortunate given the elegant design of the plaintiff’s moko. Our conclusion that such a request has a potential to upset to a wide range of people, not just Maori, is hardly an endorsement of what was done. Equally, others may see the request as having been made with good reason by an employer having a legitimate interest in the appearance of its staff.

[70] The company has succeeded in its defence of the claim, but it does not follow that we approve of what it did in any general sense. Nor do we disapprove. As explained at the outset, it is simply not our function to evaluate what happened in that way. Our only conclusions are that:

• [a] The plaintiff was not a victim of direct discrimination on any of the prohibited grounds of discrimination when she was asked to cover her moko on 17 May 2010; and
  
• [b] The allegation that what happened was an incident of indirect discrimination has not been established on the evidence that we have heard.
  

Conclusion

[71] The plaintiff’s claim is dismissed.

[72] Any application for costs will be dealt with according to the following timetable:

• [a] Any application is to be filed and served, along with any submissions or other materials that are put forward in support of the application, within 28 days after this decision is issued to the parties;
  
• [b] Any notice of opposition to the making of an award of costs is to be filed and served, along with any submissions or other materials put forward in opposition to the application, within a further 28 days;
  
• [c] The Tribunal will then determine the issue of costs on the basis of the papers that will by then have been filed and served, and without any further viva voce hearing.
  
• [d] In case it should prove to be necessary, we leave it to the Chairperson of the Tribunal to vary the foregoing timetable as he may consider appropriate in order to see that any question of costs is dealt with fairly and expeditiously.
  

______________ ______________ _____________
Mr R D C Hindle Mr G J Cook JP Mr R Musuku
Chairperson Member Member

[1] In this decision, ‘the Act’.
[2] As we note in more detail below, in fact the present case is not about a rule which excludes members of the public from an event because of a tattoo; it is about an employee who was working at a private function, and her relationship with her employer. Even so we think this passage neatly captures the political idea behind the argument for the plaintiff in this case.
[3] Evidence of Professor Te Awekotuku at para 34.
[4] Quite how that is to be reconciled by the sub judice rule is not clear to us, but the parties did not complain and we see no reason to make an issue if it. We mention this only to demonstrate the kind of popular debate that the case has generated.
[5] Whatever that might really mean in this context.
[6] We have redacted the names of the plaintiff’s children as we see no need for them to be identified.
[7] In this decision, ‘the company’.
[8] That is, aside from the fact that he asked her to cover it.
[9] At one point the claim included the suggestion that the events of 17 May 2010 amounted to a constructive dismissal of the plaintiff. The claim was not pursued at hearing, no doubt because it became clear that the company was willing to engage the plaintiff to work for it again, notwithstanding what had happened on 17 May 2010. Further, and as noted, by 17 May 2010 the plaintiff had already worked a number of shifts wearing the short-sleeved shirt. As a result it cannot be assumed that she would ever have been asked to cover her moko again. This was not the application of any company ‘rule’, policy or practice. It was just an isolated incident.
[10] We took that to mean that Mr Peet was angry and agitated.
[11] Indeed Mr Brough told us that he is Maori (although there is no suggestion that he was serving at the function on 17 May 2010). The evidence was that apart from other Maori people who were working at the function on 17 May 2010, there were also people of European, Indian and Cook Islands ethnicities in the group that worked that day. To be clear: there is absolutely no basis whatsoever for any suggestion that the company has ever allowed its decisions about hiring staff to be influenced in any way by race, ethnicity and/or national origins (or tattoos, for that matter).
[12] We cannot see anything in the evidence to suggest that Mr Peet would not have done the very same thing, if the same design or something similar to it had been worn by a non-Maori person.
[13] The evidence was given in that way, but we do not imagine that it was intended to exclude people of other races, ethnicities or national origins.
[14] In fact we think there are many examples of patterns and designs that evoke Maori tradition but which are on or used by non-Maori people.
[15] As noted at paragraph [3] above.
[16] The argument for the plaintiff might perhaps have been easier if the moko in question had been a full facial moko, as opposed to the design the plaintiff wears on her arm. While her moko has obvious connections with Maori, it also has the rather more generally ‘New Zealand’ features so accurately described by Professor Te Awekotuku in her evidence – see para [11] above.
[17] E.g., Coburn v Human Rights Commission (1994) 1 HRNZ 120; New Zealand Van Lines Ltd v Proceedings Commissioner [1995] 1 NZLR 100; Director of Human Rights Proceedings v New Zealand Thoroughbred Racing Inc. [2002] NZCA 88; (2002) 6 HRNZ 713; Trevethick v Ministry of Health (Wellington High Court, CIV-2007-485-2449, Per Dobson J); and Talleys Fisheries Ltd v Lewis & Edwards [2007] NZHC 1845; (2007) 8 HRNZ 413. Having noted these references, however, we should say that we could not see that there was any real issue of statutory interpretation raised by this case – see para [53] below.
[18] Including the Universal Declaration on Human Rights, the International Covenant on Civil and Political Rights; the International Covenant on Economic, Social and Political Rights, the International Convention on the Elimination of All Forms of racial Discrimination, and the UN Declaration on the Rights of Indigenous Persons.
[19] R (on the application of Begum) v Denbigh High School [2006] UKHL 15; [2007] 1 AC 100 – school refusal to allow a student to wear a jilbab was either not a breach of Article 9 of the European Convention on Human Rights or, if it was (per Lord Nicholls and Lady Hale) then it was justified; R (on the application of X) v Head Teacher and Governors of Y School [2007] EWHC 298; [2008] 1 All ER 249 – school refusal to allow a student to wear a niqab veil not a breach of Article 9 of the European Convention on Human Rights or, if it was, then it was justified; R (on the application of Playfoot) v Governing Body of Millais School [2007] EWCH 1698 – rule against the wearing of a purity ring not discriminatory or, if it was, then it was justified; per contra Watkins-Singh v Aberdare Girls’ High School & Anor [2008] EWHC – rule prohibiting the wearing bangles discriminated indirectly against students with close connection to the Sikh community who wear a kara (a plain steel bangle about 5mm wide) as a visible sign of their identity and faith.
[20] G v Head Teacher & Governors of St Gregory’s Catholic Science College [2011] EWHC 1452 – a student of African-Caribbean descent (for whom it was culturally important that the hair not be cut) was held to have been a subject of indirect discrimination by a school policy which prohibited the wearing of hair in cornrows. .
[21] Mandla v Dowell Lee [1983] 2 AC 549 – a school rule against wearing turbans indirectly discrimination against Sikh students.
[22] Sahin v Turkey (2007) 44 EHRR – policy against wearing of headscarves upheld as justified interference with freedom of religion (European Court of Human Rights).
[23] Multani v Commission scolaire Marguerite-Bourgeoys [2006] 1 SCR 256 – wearing by Sikh student of a kirpan (ceremonial metal dagger) found to be an infringement of the right to freedom of religion under the Canadian Charter.
[24] Bhinder v CN [1985] 2 SCR 561 – (by majority) the Supreme Court of Canada held that a rule requiring a Sikh person to wear a hard hat was a genuine occupational qualification.
[25] Equal Opportunity Commission v Red Robin Gourmet Burgers Inc26 2005 WL 2090677 (Washington).
[27] Riggs v City of Fort Worth28 229 F Supp 2d 572 (N.D. Tex. 2002)
[29] MEC for Education: Kwazulu Natal & ors v Pillay [2007] ZACC 21. We should say for accuracy that we have taken the information about the South African legislation from the decision; we have not accessed it directly to see if there have been any relevant amendments since Pillay was decided.
[30] When discussing indirect discrimination, counsel for the plaintiff argued: “A no tattoo rule inhibits the ability of Maori as New Zealand’s indigenous people to maintain their cultural traditions. Maori have a right to the conservation, protection and development of their culture under international human rights law, and the State has a responsibility to uphold that right.” We make the point that this is in essence a political argument, not a legal argument.
[31] BHP New Zealand Steel Limited and Anor v O’Dea [1997] ERNZ 667, at pages 681/682.
[32] This is the point made at para [31] above.
[33] At several points in the argument for the plaintiff it was described as an ‘ad hoc’ policy or to that effect; but in our view that really only serves to acknowledge that there was nothing pre-mediated or organised about what happened: c/f Rishworth, Human Rights and the Bill of Rights [1997] NZ Law Review 349 at 369.
[34] In fact Mr Brough’s evidence, which we accept, was to the effect that if he had understood the significance of the plaintiff’s moko to her then he would also have understood that asking her to cover it might give rise to human rights issues, and he would not have done so.
[35] See para [23] above.
[36] Selene Mize, Indirect Discrimination Reconsidered [2007] NZ Law Review 27.
[37] See, to similar effect, Claymore Management Limited v Anderson [2003] NZLR 537 at [158].
[38] Mize, supra note 34 at p. 28.
[39] That is, evidence going beyond the evidence given by the plaintiff about the isolated incident on 17 May 2010 and how she reacted to that.
[40] We were referred to Wheen v Real Estate Agents Licencing Board [1995] NZCRT 1; (1996) 2 HRNZ 481 and Auckland City Council v Hapimana [1976] 1 NZLR 731 in which an earlier decision in Holland v Jones [1917] HCA 26; (1917) 23 CLR 149 was cited. Counsel also submitted that judicial notice was taken in a leading case on indirect discrimination in New Zealand, namely Northern Regional Health Association v Human Rights Commission [1998] 2 NZLR 218.
[41] In fact there is no need to take judicial notice of this proposition because it is in evidence: indeed the defendant acknowledges that the plaintiff may have felt upset, hurt and/or that she was a victim of unfair treatment when she was asked to cover her moko.
[42] The Professor mentioned people of Samoan, Tongan and Cook Island origins as examples – but she was giving them as examples only. We have no doubt she would agree that there are many other races, ethnicities and nationalities that might have been mentioned.
[43] Mize, supra note 34, at p 47 et seq.