Barber Brothers advertising for male-only job applicants breaches Human Rights Act, lawyer says

July 30, 2019

Three Auckland employers are advertising for male only jobs, potentially breaching the Human Rights Act, lawyers say.


HR Matters Tip:

Ensure that you do not breach the Human Rights Act at any point of the job application process - this includes discrimination against sex, age, race, religious belief, sexuality, martial status, and disability.

Barber Brothers, with stores in Auckland's CBD, Manurewa, Papakura and Pukekohe, is advertising for male-only part-time and full-time staff.


Barber Brothers director Abdul Al-Kashoosh said it was looking for male-only staff because the business was a "barber shop" not a "hairdresser".


He said men were better at cutting men's hair than women and it was not suitable to hire a woman because all of its staff were men.


Asked why women could not work in that environment he said: "We just prefer men".


By the end of an interview with Stuff Al-Kashoosh said if a woman could prove she could cut men's hair as good as a male then he would consider hiring her.


Barber Brothers is not the only Auckland employer advertising male-only roles in online ads.


A recruitment company advertising on behalf of a warehouse in Glen Innes says it is seeking 20 male-only workers to start immediately, and a cleaning company says its looking for male-only applicants because the role involves cleaning men's toilets.


Employment lawyer Steph Dyhrberg said, because the employers were discriminating against sex, they breached the Human Rights Act and were acting unlawfully.


The partner at Dyhrberg Drayton said she was "gobsmacked" there were still employers discriminating based on gender in job ads.


"It's 2019 for God's sake," Dyhrberg said. "I thought people knew better."

She said it was disappointing that employers were not getting the message that it was against the law to discriminate against gender.


"Ignorance is no excuse."

On job seeking website an ad listed by Auckland recruitment company Stirling on behalf of a Glen Innes client said it was needing 20 male candidates to start work immediately.


A Stirling manager, who did not want to be named, said both he and his client were aware that the job ad was discriminating based on sex.


"However it is a requirement from our client's side. It's not what we want."


He said the job required the lifting of boxes weighing up to 15 kilograms.


"Unfortunately the client wants good healthy men to be doing the lifting because he doesn't want the women to get hurt in the process of that."


He would not say who the client was.


Another ad on belonging to cleaning company OCS said it was looking for a male cleaner as the role required the individual to clean male bathrooms at the NorthWest Shopping Centre during a period of public use.


OCS marketing manager Carole Norris said it was allowed to specify gender for toilet cleaning roles based on a Human Rights Act clause which allowed a position to be held by one sex to preserve reasonable standards of privacy.


OCS had male cleaners cleaning men's bathrooms and females cleaning women's bathrooms, she said.


Sometimes it was a client requirement, she said.It was also for staff safety reasons, she said.


Dundas Street Employment Lawyers partner Blair Scotland said, in his view, the job ads were likely to be in breach of the Human Rights Act.


The Human Rights Act sets out grounds of discrimination and discriminating against sex or gender was one of them, he said. However, there were some exceptions, such as a section in the act that stipulates an employer can discriminate on the grounds of sex and age, if "for reasons of authenticity, being of a particular sex or age is a genuine occupational qualification" for the job.


An example would be an employers' right to hire only women for a role that required the fitting of bras on women, Scotland said.


If someone felt unlawfully discriminated against they could lodge a complaint with the Human Rights Commission which could get the parties together for mediation, he said.


If that did not result in a satisfactory outcome then the matter could be referred to the Human Rights Review Tribunal, he said.


Most situations were resolved through education and publicity, he said."A bit of publicity can be a healthy thing.


"He said he had never seen an employer be sued and required to pay damages for unlawful discrimination."


Most organisations will either listen to the publicity or they are so stuck in their ways they will keep doing what they do even though it's fundamentally out of step with both what society accepts and the law of the land.


"An commission spokeswoman said in 2017 it received 689 enquiries and complaints in relation to employment.


An employer could specify physical characteristics such as height, weight or strength as being essential for a job if there was a good and genuine reason for doing that, she said.


"Employers can't prefer a specific gender to fill a position unless the employer can prove that gender is a genuine occupational qualification."


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