KEY POINTS:
Q I have worked for about five years in the sales department of an engineering business. Last month our sales manager left and I applied for his job. A colleague, who started after me, also applied and was promoted instead. I have more experience than him and my sales record is better. I was told that because all the other sales reps are men, another man is needed to manage them. I told the general manager this is discrimination but he said it's just business and said "would I really want to try to tell four guys what to do?".
A Your employer may have unlawfully discriminated against you under the Human Rights Act 1993 and the Employment Relations Act 2000. You could use the process under either act (but not both) to take action against your employer.
Your situation is topical. You may have read about the largest sex discrimination lawsuit in US history being brought against Wal-Mart, the world's largest retailer. Like you, female employees of Wal-Mart say they have been passed up for promotion because they are women. It is estimated up to 1.6 million women might join the lawsuit.
In New Zealand, under both the Employment Relations Act 2000 and the Human Rights Act 1993, it is unlawful discrimination if your employer promotes someone else instead of you, and the successful employee:
* Has the same or "substantially similar" qualifications, experience or skills as you; and is employed in the same circumstances.
* The reason the other employee was promoted instead of you was (directly or indirectly) your sex.
In your case, whether your employer did unlawfully discriminate against you depends on two things:
* First, whether there is enough evidence the reason you were passed up for promotion was your sex - and your employer pretty much told you that you didn't get the job because you are a woman.
* Secondly, whether your colleague did have the same or 'substantially similar' qualifications, experience or skills as you. This would be examined closely if you brought a claim against your employer. From what you have told me, you had better experience and skills than your colleague. But if, for example, your colleague had a management qualification and you did not, your employer would have been justified in promoting him to a management position instead of you if his better qualification was the reason for the promotion.
If you believe your employer unlawfully discriminated against you, you have two options:
* Ask the Human Rights Commission to give you more information. A mediator from the commission can assist you through their disputes resolution process. One outcome might be compensation for any hurt to feelings and/or losses you experienced because of the discrimination (including any loss of income because of the difference between your earnings and a sales manager's earnings).
* Or apply to the Employment Relations Authority for resolution of a "disadvantage" grievance relating to unlawful discrimination. Again, an outcome might be compensation for hurt to feelings and/or loss of earnings the discrimination caused.
If you feel so upset by your employer's actions that you cannot continue working for this company, you may be able to leave and claim you were "constructively" dismissed. This means your employer breached obligations to you so seriously that you had no choice but to leave. You might then be able to bring a claim for unjustified (constructive) dismissal.
You should contact an employment lawyer, the Human Rights Commission or the Employment Relations Authority to find out more about your options.
