 Our speaker today really needs no introduction, because she's very well known for her public commentary on constitutional and legal issues, because May Chen is someone who has not only taught the law, has not only published the law but also speaks about the law and explains the law. And so we're very pleased that she's associated with us as an adjunct professor at this law school because May Chen is someone who has been a trailblazer. She's the founding partner, the managing partner of Chen Palmer, a public and employment law firm here in Auckland and in Wellington, which has taken a number of really major public interests and other litigation matters. But she's someone who brings her knowledge of the law, as I say, to public commentary, to talking about the law, as someone of action and someone who looks at how the law can be changed and changed and actually put into effect for people. And the project May has been working on at the moment as a prime example of that, because May set up the New Zealand Superdiversity Centre for Law, Policy and Business and really I think struck a chord with some of the articles that were published in the New Zealand Herald and printed elsewhere about what are going to be the legal effects and the legal ramifications of superdiversity in our society. That Auckland was changing rapidly, New Zealand was changing, the number of people who now live, work, call Auckland and New Zealand their home, who weren't born in this country or the city, has increased to such an extent that it really is a major part of our society. And there are going to be all sorts of implications. I think some of you here who came to May's talk two years ago when she talked about setting up the Superdiversity Centre will just be interested in seeing, well, how has the superdiversity stock take that May was heading? How has that actually gone? May has always believed in taking her research and making it available generally. So she published the public law toolbox several years ago where she tried to explain so that everyone could pick up and understand what our constitution was about, how our government worked. But with the superdiversity issue, this is something where she's taken it, put it on a website, the research that's been carried out, the conclusions that have occurred. And I think as of the other day, it had been downloaded 145,000 times. So that really is an immense impact in terms of the interests that people have in this work that she's been carrying out, its implications for our law, our policy and our society. So I'd ask you to join with me to give us an update, particularly with respect to discrimination and diversity. Would you please welcome May Chair. Well, that's very kind of you, Professor Andrew Stockley. And can I also acknowledge Professor Susan Watson. Can I acknowledge Adrian Cleland, who I've known for a long time. Can I also acknowledge Andrew Barnes and Charlotte Lockhart from Perpetual Guardian. These documents don't get published without support. And it's Perpetual Guardian that supported the publication of both the superdiversity stocktake and also the diversity matrix, which I want to talk about today. So, of course, when I was last here, we did talk about the law, the policy and the business implications of superdiversity. I went on to publish the superdiversity stocktake. Everyone said, what was that? Well, clearly they didn't mind that they didn't know what it was. Andrew, because they just went and downloaded it anyway. Now, I haven't actually managed to get it on to any other website, apart from the superdiversity centre website. You actually had to find it in order to download it. And we've now had to change the website configuration. So we stopped counting. But it was 145,000, which was obscene, really. And it was beyond what I thought. And the interesting thing was who was downloading it. So it was mums and dads and it was schools and it was hospitals and DHBs. But it was also business. Business was understanding that it was significant. So why were they downloading it and what did I learn? Actually, what I learnt was that superdiversity has implications, profound implications for 360 degrees in terms of public policy. We actually needed a diversity framework to identify all of the issues that superdiversity raises in the development of particular policies or areas, whether it's customs or education or health. There needs to be a languages policy. There needs to be a multicultural policy in New Zealand on a bicultural base. We don't have that at the moment. It's not a formal policy. And that has implications. In terms of central and local government, what I've discovered is the need for different approaches to voters and rate payer engagement. In fact, it was interesting the other day I was talking to the Prime Minister and I asked him what implications a superdiverse New Zealand had for election year. And he said that the real issue for them was engagement. He said that they had to learn how to engage with these populations and they had to learn what it all meant. Because they said, oh, for example, he says, you know, you go to these dinners and the Chinese come up to you and they say, oh, they like you a lot. But then they say that also to the opposition and you can't tell whether or not they're going to vote for you. Of course, we also did a paper on the implications of superdiversity for electoral laws. And we discovered actually there was a need to amend electoral laws to support people. For whom English was not a first language. But of course the implications for business have been huge and I have run around the country, started giving really literally hundreds of speeches and addresses to business who found that the changing customer base has resulted in some of them losing market share because they've been predominantly focused on an Anglo-Saxon customer base and of course in Auckland now we're almost half Maori, Pacific and Asian. So what they found is that in order to communicate and connect with very different customers with different needs and different service expectations, they really need to think again about cultural intelligence and also the talent base has also changed. So they've also found that the instructions and the orders are no longer coming mainly from Europe, they're coming from Asia. And what that means in terms of who needs to lead in senior management but also on boards. So of course the number one issue that I've been interested in has been law and what I've discovered, whether it's practicing law at Chim Palmer or sitting on the BNZ board or doing my research here is that there are issues for the super diverse populations in terms of understanding the rule of law, understanding the Treaty of Waitangi. Many of them don't understand why there is special treatment of Maori and they needed the history of New Zealand explained. There have been issues about New Zealand not slipping down the transparency international ladder because of course New Zealand remains number one but some of the source countries of our major migration are much lower down that ladder. But the number one issue for super diverse people that we have discovered through doing all our surveys and our research remains that they get discriminated against in employment and that is not necessarily decreasing and whether that's conscious or unconscious bias it is having profound implications for New Zealand's financial and social well-being all of which provides a very good basis for the next piece of work which I published recently and that's called Diversity Matrix updating what diversity means for discrimination laws in the 21st century. Because you see all of us have a sex, a family, a marital status, a religious or ethical belief, a political opinion, colour, race, ethnic or national origin, disability, ability, age, employment status and sexual orientation. What super diversity does is that it increases the complexity of identity and I've often used my son as an example but he's a good example. He's got Taiwanese grandparents on the one side, he's got Scottish grandparents on the other side from the Shetlands in Aberdeen. He has my little face and he has brown, Scottish curly hair with a tinge of red and he was born in New Zealand but you see New Zealand is evolving in its culture and it's a very diverse country. Then almost every other country in the world, we are now the fourth most super diverse country in the world, Auckland in particular. There is a high rate of intermarriage and mixed-race children so what does that mean? Well I want to read to you what it means because this is a shortcut and this is the executive summary to the super diversity, the diversity matrix. New Zealand needs to adopt a new approach to anti-discrimination. To ensure our anti-discrimination laws takes into account the matrix of factors that comprise each person's identity and are properly enforced. Otherwise we risk undertaking an analysis that is distanced and desensitised from real people's real experiences. I'm quoting there from a case. Our anti-discrimination laws will not only fail to properly recognise the nature of the barriers experienced by those who are subject to multiple ground discrimination but will also fail to properly remedy the harm suffered. There is nothing in New Zealand's current anti-discrimination laws preventing the Human Rights Commission, the Human Rights Review Tribunal or the courts from adopting an intersectional discrimination approach in appropriate cases. Indeed the courts have emphasised that when interpreting anti-discrimination provisions a purpose of liberal and un-technical approach should be applied so as not to frustrate the purpose of human rights legislation. Although the Human Rights Commission has mediated cases involving multiple ground discrimination and I'm very fortunate here to have the Chief Mediator from the Human Rights Commission here today, Paolo Walker, who contributed some very episode case studies to my paper on Diversity Matrix. The Human Rights Review Tribunal and the courts have not addressed the issue as it has not yet been pleaded by claimants. The Human Rights Review Tribunal has, however, upheld discrimination claims based on more than one ground and considered the double disadvantaged experienced by some claimants even though intersectional discrimination has not been pleaded. So the New Zealand approach currently in contrast to the position in some overseas jurisdiction where the issue of intersectional discrimination has received extensive consideration by courts, human rights bodies and academics with the exception of Australia and the European courts the latter having only recently giving attention to the issue, overseas courts have adopted a range of approaches to multiple discrimination claims and in essence what they have done is over recognised that you can't just look at people along single equity lines you can't just say well this is sex discrimination and this is race discrimination and what I want to take you through is a series of cases for example in the United States which are called the black women cases in other words because of our complexity we can't continue to look at diversity as if it's just an issue concerning Anglo-Saxon women or coloured men but what they find is that there are some discrimination suffered only by for example those suffering the intersection of issues like for example coloured women or older men with a disability and the difficulty is that our current law does not accommodate that approach, it says we can only deal with one issue and if you can't satisfy the courts that you either can establish the evidence of sex discrimination or race discrimination then you are lost you are not able to prove your case and I say that today standing here before you as a survivor as a survivor of having argued one of these pay equity claim cases it was damn difficult and when I read Dame Patsy Reddy's paper she cheered a pay equity working group and what they discovered was that the difficulty with pay equity claims is actually not law, there's plenty of it the difficulty is providing the evidence to substantiate the case that discrimination has actually happened now it's fine if it's direct discrimination because you just say as Allie Moore said the other day in the Sunday Star Times well I just got told I wasn't getting paid what Mike Hosking was being paid but it's much more difficult when it's indirect discrimination and of course the claim that I was involved in concerned the midwives community midwives in New Zealand these are not the midwives that work in hospitals but the midwives that work in the community and they are self-employed so they didn't have an employer in the normal sense so the Human Rights Act doesn't work for them and the Equal Pay Act didn't work for them so we ended up having to go under the Human Rights Act and we went under section 19 the problem overwhelmingly remains that the way in which our law deals with cases of this sort is that we say that the most important thing is you have to find a comparator so for example if you go and you look at the stock standard cases in the New Zealand courts it talks about the fact that and I am now looking at cases such as Atkinson that you have to determine the relevant characteristics of the claimant group and then identify whether there are groups in a comparable analogous situation to the claimant group it doesn't have to be mirror but it does have to be analogous or similar and the real difficulty is what happens when it's indirect discrimination and what happens for example when you're midwives when you're community midwives and actually we only found that there were two male midwives in the whole of New Zealand but we couldn't figure out whether or not they were practicing so for all intents and purposes there was no direct comparator they were being treated all the same they were all being underpaid their average pay was between 40 and 60,000 it's good to see today and I printed it out just before I walked over here that there's been the first part of a settlement which has come out of that but the hardest part was the evidence that we're going on about today because I don't want to keep reading to you all of these cases what I'm really trying to say is that at the moment the way in which we determine whether or not discrimination happens in New Zealand is that we first search for a comparator that's how you start you determine the relevant characteristics you try and find a comparator and the comparator group selected should be one enabling a determination as to whether this difference is on the basis of gender for example on the basis of race whether it's on some non-discriminatory ground because of course what happens is when you point to something and say well I've been discriminated against and it's not direct but it's indirect usually what you get told is as follows well first of all you're imagining it it's not really true secondly you're just not as good as the other people and that's why you're getting paid less or it's a whole bunch of other matters like for example you guys don't want to work full time it's very interesting the other day to have the ministry for women bring out a report which says that actually 85% of the gender disparity in the pay gap is unexplained and it's very interesting because you will find that the Human Rights Commission has actually got a tracking equality tool which refers to compounding factors that's in quotes such as ethnicity and sex resulting in a wider pay gap for certain groups so for example you'll find the gap between European and Maori workers has widened but it's interesting because if you actually look at the pay equity issue we haven't scratched the surface which is why I say we need to change the definition in the 21st century this is not just an issue about Anglo-Saxon women if you actually take a look at the stats what they tell you is as follows it goes white men white women colored men than colored women ethnicity and race has a compounding factor and actually there's also a migrant effect on pay if you really want to know what the migrant effect on pay is and they can't explain it for any other reason except you're a migrant although it seems to get better if you speak English well it's between 21 and 27% so what they find is that migrants and especially Asian migrants are overwhelmingly over-qualified for their roles and they are overwhelmingly underpaid in what it is they do so it's very interesting because when I went to talk to the Human Rights Commission about this what they did in Palo Walker in particular referred me to a range of examples of intersectional discrimination not just gender not just race but a whole bunch of things all mixed up together and why does that matter well it matters for this reason if we are going to have laws, cases and enforcement which comports more accurately with the real lived experiences of ordinary people then we need to change the way in which the courts are approaching cases, we need to change the courts approach, we need to change lawyers approach lawyers aren't pleading this, they're not arguing it and the reason is because they're not aware of it which is why a lot of the work that I do is simply making the invisible visible so that was why I set up Superdiverse Women and I did it actually after reading all of the US Title 7 cases on Black Women which are now considered to be a protected group but these are the stats from the Human Rights Commission between October 2015 and October 2016 15.4% of complaints submitted to the HRC relied on more than one prohibited ground compared to 9.19% of complaints between October 2011 and October 2012 I woke up this morning I turned on the radio maybe the radio just turned itself on I don't think I'm usually awake at that time in the morning but there was a story on National Radio about the claim for child abuse inquiry lodged with the Waikangi Tribunal and this is the claim that Maori children in particular were disproportionately singled out for state care and so you could think about a range of intersectional issues here I spoke to the Human Rights Commission about it today because we're talking about age we're talking about very young people sometimes we're talking about gender girls or boys and we're talking about the fact that they were Maori and so you've got an intersection there that means that there's a whole bunch of people at the moment running around saying to the government along with the Human Rights Commission that there should be an inquiry and that what has been provided by the government is not adequate but actually it's a if you look at it from a 21st century perspective there's a whole other angle to this that we haven't been looking at it from and that is from the intersection of ethnicity and age and I say that because actually the time is right super diverse women is the fastest growing organisation I've ever established the most amazing thing is interviewing all of these women I've discovered that all of the super diverse lawyers who are very prominent who belong to this organisation all came into the law for exactly the same reason they suffered discrimination they didn't like it and they wanted to go into the law to figure out how they could fight injustice pretty interesting really and then you look at the movies that are around at the moment now I took my son to Hidden Figures the other day and he said oh mum you know it's not like that now and I said well you know you'd be surprised actually a moonlight is actually intersectionality between race and gender so all I'm saying is I'm giving you eyes to have another look at what is around us so let me just very quickly go back to the problem that we've got with evidence because it is a serious problem I say this because if you go and look at the working group what the working group says is this and I'm sure Patsy drafted this Dame Patsy is a very good drafter in fact without her I could not have set up New Zealand Global Woman she was excellent in assisting me but she talked about the fact that recognising that pay equity is a complex matter will be essential that parties bargaining on pay equity matters have really access to adequate information and resources to assist them in their deliberations we know some information and resources exist much of it in the form of proprietary pay surveys, past job evaluation methodologies, current job sizing tools the history of the sector and whether or not there's been a history of discrimination in the sector but for example I can see lots of you in the room and I know all of your backgrounds but you know there are sectors where it's there just has been a lot of discrimination in the past and there are characteristics which are prohibited grounds because of historical discrimination so where do you get this evidence now before I pass on to that I just do want to stress that there is actually nothing in New Zealand's law that would prevent us adopting an intersectional approach right now this is distinct from Australia and I don't want to have I don't want to have a real go at Australians but the trouble with Australia's law is that the legislative framework that exists in Australia is inherently single grounded nature and that's because they've got a Human Rights Commission Act but they've also got a Racial Discrimination Act a Sex Discrimination Act a Disability Discrimination Act and an Age Discrimination Act so that means that if you are in the intersection of those things which most of us are then it's too bad, you're going to have to choose did I really get discriminated against as a woman or did I get discriminated against because I was Chinese I have to choose how do you choose between the two and how do you bifurcate one from the other particularly when it's a compounding effect how do you then determine causation and how do you then determine the remedy so we need to deal with all of those issues I just want to point out though that Canada as usual has led the charge and they've been very forward thinking in this area in Canada they actually amended their Human Rights Act so that section 21 now says for the avoidance of doubt discrimination may be based on one or more of the prohibited grounds listed in subsection 1 and on a combination of prohibited grounds so look it's for the avoidance of doubt you could do it anyway, it's descriptive it's not prescriptive but it's just giving everybody a nudge in that direction in case they haven't thought about it I just want to point out and now I'm not putting the boot into the UK but I just want to point out that the United Kingdom did try and expressly protect against multiple discrimination and so they did actually introduce a section to do that but it was withdrawn because business lobbied and said it would be too expensive so it didn't proceed and it's quite interesting because the diversity matrix has a whole bunch of cases you need to look at them but that's really what's wrong with a unilateral narrow approach which is not multiple ground discrimination because in that case there was a black woman solicitor and they just said tough luck alright love, what's it going to be do you want to plead sex discrimination or race discrimination because you can't do both and she didn't make it on either they said well it's not you haven't got enough evidence to prove sex discrimination and actually you haven't quite got enough evidence to prove race discrimination and so they just dismissed it because they said that you couldn't get to the combination unless you had one or the other actually Europe has not been that forward looking either and in fact the most recent judgment and I must update this because actually it's not in the publication but it just came out recently but there what the European Court of Justice has decided is that and I quote that at issue in the main proceedings is not capable of creating discrimination as a result of the combined effect of sexual orientation and age that's what the combination was in this particular case where that rule does not constitute discrimination either on the ground of sexual orientation or on the ground of age taken in isolation so you still have to do step one which is to prove yourself on a unilateral ground before they'll look at the combined ground and if you don't get yourself there on a unilateral ground they won't get to the combined ground now I suppose the good news from the international human rights perspective is that just about all of them recognize an intersectional discrimination approach not surprisingly so they all do pretty much and so that is the international civil and political rights covenant that's the international economic, social and cultural so these are all the committees of these international organizations and they all say well of course it's a bit of a no brainer I mean it's either and or any or all of these grounds and so I won't go through that what I will do is simply focus the rest of my time on New Zealand and the cases and I said before and I'm just starting backwards and forwards but it's really cause there's a lot of content but for example there's recently been a study out on what's causing homelessness and guess what is that if you adopt a unilateral single ground approach you will never ever determine what is the real cause of homelessness because it is only when you view it from an intersectional perspective that you realize that there is a broad range of factors that result in the homelessness issue and so I talk about a study the most recent study on housing which explains that the housing crisis is caused by a convergence of the following factors age, sex because it's generally the young, the poor Maori, Pacific, single parent households chronic physical and mental illness it's a combination of all of these things so if you are the Treasury and usually when I go to the Treasury I say the solution is this and they say yes but may we don't even think there's a problem so then we back up and say alright what's the problem you need to probably diagnose the problem otherwise you are never ever going to solve it and part of the reason we're not solving the homelessness problem is because we are looking at this through the wrong eyes we're looking at this through a 20th century lens and not a 21st century lens of greater complexity I've talked about a range of other issues so what I will now do is I will talk about what we do in New Zealand so how do we get around the comparator issue and how do we use jurisprudence to help us get around it all I'm trying to say bottom line is it's capable of being done so if you want to argue this case and I'm desperately now looking for a case so that we can argue a case in this area so that people realise that it is important for us to be adopting an intersectional discrimination approach in the courts that will encourage thinking in this area jurisprudence in this area and it will encourage lawyers to be pleading not necessarily on your bended knee I mean pleading is in your statement of claim in a way that takes into account multiple ground discrimination because what the overseas cases show is that we don't necessarily need to adopt a comparator approach so that's generally the approach we've adopted so if you look at the key cases in this area idea services, child poverty case, the Atkinson case the law here is pretty settled basically if you want to argue in this area what you do is you go out there and you find a comparator and that's really difficult if it's indirect discrimination and it costs a lot of money and then you spend a long time having generally the crown explain that this is not a comparator at all and you are not at all alike so it feels like you're back on Sesame Street one of these things is not like the other so you're busy trying to show you know that midwives are kind of like you know and so where do you start in terms of trying to figure out what they're comparable to because what you have to do is try and find a comparator that takes into account the particular grounds of discrimination that you are trying to prove it's quite difficult but what the Canadian courts have done is that instead of using a comparator the Canadian Supreme Court has focused on adverse or disadvantage adverse impact as compared with difference and in some cases they have focused on multiple comparators so that's another potential way that you can deal with it now of course in New Zealand we've got cases like Quilter where the approach adopted by the courts was a focused on impact so it's not as if we don't have a precedent in that area and also the Court of Appeal in Atkinson made it clear that the word discrimination in section 191 of the Bill of Rights Act is not qualified in any way so you could adopt a similar approach to the Canadian experience obviously it's easier if there is high levels of racial or sexual specific conduct in other words if you've got clear smoking gun issues it's much much easier the difficulty is when you've got a situation where the discrimination is because of that intersection of grounds and then really if you don't get a lawyer or a judge that is sympathetic to an intersectional approach that you're really going to be forced to choose and the difficulty with choosing is that it then results in misrepresenting what happened to you and it results in misrepresenting the harm that you suffered representing the remedy that you should be rewarded or not rewarded but that you should be given for what you've suffered so that's problem number one problem number two is establishing causation between differential treatment and the prohibited grounds now obviously the more grounds of non-discrimination the harder the causation is to prove and so the issue here is whether the courts are going to be prepared to provide some flexibility because there is the problem of not quite getting there on any one ground and then not being able to get there in aggregate either which is really going to cause a problem and as I've said the third problem is remedies awarding an increased remedy may be necessary because the intersection results in a compounding effect it's not just one plus one it may be that because of the intersection between the two the harm suffered was worse so you may get three times but once again that is fresh fields for New Zealand at the moment there's been a recent case on New Zealand that seems to refer to intersectional discrimination it's actually New Zealand basing limited and brown and it's actually going to the Supreme Court so I will be watching it I'll let you know is that your case? My husband's case, very good I will talk to you afterwards and maybe he can keep me briefed so let me finish on the Canadian courts and the United States courts because I think it's important for you just to see where that's gone and how that's worked in contrast to New Zealand courts Canadian courts have not tended to adopt a comparator analysis to identify whether intersectional discrimination has occurred instead they've focused on the compounding percentage to the claimant in such cases so intersectional discrimination is now pretty well entrenched in Canadian human rights law following several charter cases that established a new approach to discrimination based on the matrix of factors but look it hasn't necessarily been easy and so we've had a series of cases here we had a case where discrimination in someone being laid off on the grounds of being a 63-year-old male worker with a heart condition was appalled intersectional, Morrison's case an African female complained of discrimination during a recruitment process Bayless Flannery the employer made unwanted sexual advances to a black woman employee the Ontario this is the Human Rights Tribunal here concluded that an intersectional analysis of discrimination is a fact driven exercise so once again I'm just talking about evidence how do you get the evidence to prove this for those of you who are still at law school and for many years afterwards I thought it was all about the law but actually 30 years post-admission I've discovered that actually it's all about the facts and I can always remember once when I was a very very young lawyer I said something very stupid to the Honourable Justice Gault I said many stupid things to judges but this one was a particularly stupid thing I said Tom Gault Justice Gault he's just a wonderful man, he's not with us now but Tom said to me oh so how are you organising this case because I think Geoffrey and I had split a case Geoffrey Palmer or maybe I was doing it with another law partner at the time and I said oh X is doing the facts and I'm doing the law and he said well that's stupid because it's all about the facts and I remember thinking isn't it? and of course it is so the Ontario Human Rights Tribunal said an intersectional analysis of discrimination is a fact driven exercise that assesses the disparate relevancy and impact of the possibility of compound discrimination they didn't adopt a comparative analysis but of course easy cases sometimes make hard law as well this was a case where there was direct discrimination so it was just so easy in this case there's another case these cases all have really funny names like the Turner case, Turner and Canada is called the lazy black man case well because they're all stereotypes you see and he was discriminated against in a recruitment round because they just said oh he's just a lazy fat man because he was obese so anyway the United States has got some really interesting black woman cases the key case there remains the Jeffries case this is a Title 7 Civil Rights Act case and it's a 1980 case but it's still good law and essentially what happened there was that a black woman said that she'd been discriminated against because they'd failed to promote her and the positions were always filled by black men or non-black females and she lost in the lower court because the lower court said no you lose because the employer has brought evidence that actually non-black women and black men do perfectly fine and those are the comparators and what the Court of Appeals concluded was that discrimination against black females can exist even in the absence of discrimination against black men and essentially Anglo-Saxon women because they said well you've got an experience all your own and so the comparators are wrong we're comparing you to the wrong people you can't be compared now you know why I set up super diverse women because their experience is not the same and what has happened as a consequence of this case is that it's resulted in black women being recognised as a protected class under Title 7 that was then extended actually I just want to tell you about Hicks because the Court of Appeal then directed the lower court to aggregate the evidence of racial hostility with the evidence of sexual hostility to determine the pervasiveness of the harassment against a black woman so instead of saying well no you need to prove one or the other they said no you can sweep it all together and then in Lambs case and University of Hawaii the black woman case was extended to Asian women and so this was the cancellation of a recruitment process rather than hiring her when she applied for the advertised position which was then cancelled twice so this failed in the Hawaiian district court because the employer cited favourable consideration of Asian males and white female candidates as evidence against the discriminatory practice and the Court of Appeal criticised the district court's treatment of racism and sexism as separate and distinct elements amenable to almost mathematical treatment I'm quoting they held that Asian men and white women could not be used as model victims alright and then maybe I could finish with Hartford's case where there was a black Muslim now can you imagine those two as an intersection to be black and to be Muslim experienced abusive harassment at work and the Court concluded that the possibility that the racial animus of Hartford's co-workers was augmented by their bias against his religion now I could spend a bit more time talking to you about all of the European cases so these are the Habib cases the swimming costume cases, the religious garment cases which are generally the intersection between race, gender religion because of course what many of these women argued when they were told that they had to take off their hijab or their veil was that this was not something that was required of their male Muslim counterparts but nevertheless you will be very pleased to hear that the European Court of Human Rights decided that the discrimination should be upheld so it's very interesting the grounds in which they decided it should be upheld but can I just say in closing all I'm trying to do is to get you to think and what I'm trying to get you to think is this that in New Zealand in the 21st century particularly being the fourth most superdiverse city in the world that we could still approach discrimination from a unidimensional comparator based approach I think is anathema to an increasing experience of an increasing number of New Zealanders increasingly we have New Zealanders who have more complex identities we all do and as a consequence of that I think our courts, our lawyers and also businesses, local government central government owe it to their customers, to their staff to ratepayers, to voters to also adopt a more sophisticated approach to diversity for some reason diversity has become a synonym for Anglo-Saxon women and that's good because that's a start but it is a very narrow part of diversity, in fact if you look up diversity I asked my son to give me the definition of diversity young people these days Google or Wikipedia but essentially whatever you do you will find that the definition of diversity is not narrowness, it's broadness and it is astonishing to me how narrow the whole debate on diversity has become we need to be inclusive in our discussion and we need our courts and the grounds and the enforcement and the remedies I think to be opposite to the real lived experiences of a majority of the population and when I look at the critical mass of New Zealanders and where we're going we don't yet have 2018 census figures I've only got 2013 census figures I've only got projections to 2038 on the basis of 2013 census figures but even on the basis of 2013 census figures which will be way out of date now because most people I'm talking to have said that they've seen a real transformation of New Zealand particularly in the last three years you'll find that by 2038 51% of New Zealand will identify predominantly with the ethnicities of Asian, 21% Maori, 20% and the rest of the balance going up to 51% being Pacifica, 10% and of course 65% will continue to identify also with the ethnicity of Anglo-Saxon but that's because there's an increasing amount of mixed race and so all I'm saying to you is given that we are projected to be moving very quickly along that trajectory what does that tell us about the approach we should take to diversity and to discrimination laws in the 21st century thank you we have an opportunity for questions and I'm sure that May's talk will provoke a number so who would like to go first for that very informative talk I do have a burning question that I can ask you it strikes me that this multicultural or multi-dimensional it's going to make it easier for people to feel that they've been discriminated against to bring action normally a barrier I suppose is knowing that you've been discriminated against and trying to delineate or identify the opposite of discrimination do you think though that with this multi cultural lens or multi-dimensional lens would that actually reduce the barrier to bring in plans and would that increase you know just more I suppose more people who have maybe a little bit of a case can understand I'm sure that's what the employers will argue would you be so kind as to have the first stab at this and then I'll follow up would you like to comment on this Pelle Walker's the chief mediator at the Human Rights Commission because I guess the argument will be that there's a dumbing down because you say well you know it's a bit of everything it's two halves of nothing but it's you know when you sweep it all together it might be something I think that maybe we'll say that that's the key and even though I'm a mediator in our process of resolving the steps through mediations those facts are very low in the section you have just even to have your complaint for mediations you have to present some kind of indication or evidence if you like that you've got a case and that's really hard to do and if you're one of the cases I gave which was a perfect example this was a woman who had worked for ten years but got in with a male cohort she's required to increase the salary she'd done the study on a part time and her own time and so on and her salary and then she wasn't available or she didn't have, she wasn't at the right levels to move up the scale as her male counterpart and it was really obvious that being a woman having family responsibilities our just the combination of that was what the position that she was in that was really hard for the employer to even see and a complication was she'd been there ten years and there'd been a change in management who didn't know her history so when she came to mediation she'd try and prove what her history had been and it was really really hard so it does, you know you've asked does it kind of water it down yes, in a way it makes it very very difficult so thank you for that because that is consistent with what I thought but I just wanted to check what Palais thought because my answer is the theme of my discussion so everything I've been trying to tell you about today is how to get the evidence at the end of the day it's not mumbo-jumbo it's not airy-fairy when you get to court you have to prove on the evidence that there is a basis for the discrimination and so you do have to make it real otherwise you won't win and the people on the other side will be busy saying that it doesn't exist that it's all in your head and that actually you're just not as good and you just haven't done the fly-mars and you haven't got the qualifications so you do need to be ready for that pushback I've no doubt that in the first intersectional discrimination case proper where that is pleaded in the statement of claim that that will be what comes back in the statement of defence that actually there's two halves of nothing here and that it's all smoke and so as a consequence of that the entire focus really of my review of those cases what I was really interested in in those cases was what evidence was sufficient for them to establish their case because in my experience that is what this is all about it's about turning it into something that can be compared so that you can show that discrimination really has happened because of course discrimination is not illegal there's only certain grounds that are prohibited any other questions or comments? Rose you must have a comment former Human Rights Commissioner Chief Human Rights Commissioner so I was just asking Terry what happened in the case she said sadly there's no solution at the Human Rights Commissioner level I do think we have one advantage here in New Zealand which is that the Human Rights Commissioner's processes are very flexible and will aim to the extent possible to push the boundaries and to take into account the sectionality and to deal with the whole person and the whole situation and evidence of that was that we also well I was the Commissioner negotiated to to joint mediate cases with the then labored partner mediators where sometimes employment issues direct employment issues and sometimes there were other discrimination factors so I think there's possibility of the commission contributing to a body of cases and through the commission the Office of Human Rights Proceedings where they don't settle at this level taking you through the courts well it is imperative and generally what we find in these cases as you well know is that they go through mediation and then they go to the tribunal and if the Crown loses they will it then starts the court process really it was very interesting when we were starting our case what we did was we counted up the number of years that it took for people who started at the Human Rights Commission and generally it was you were looking at seven years to try and get an outcome because if you won invariably you ended up in the High Court and if you won again you ended up in the Court of Appeal and then the Supreme Court which is just very very difficult for the complainant It's quite like the comment I should make I do think from the province of New Zealand that Crown law in New Zealand which has a human rights pageant and it's supposed to be supporting a human rights lens right across the public sector actually acts in an adversarial way in any human rights cases and I think that that involved government agencies for the Crown and I think that's a fundamental challenge that needs to be that needs to change Well in my experience it's been very interesting because I've argued many cases against the Crown on many different topics but it was interesting because I was talking with some other lawyers who had argued human rights cases with the Crown on the other side and they had all concluded that they had never found the Crown fighting as hard as it did on the other side of human rights cases and so this is extraordinary I've taken cases on behalf of corporations on behalf of other organisations and you know I mean this is not a walk in the park I mean we're in there we're paid fighters that's what we do we're there to advocate but I mean just the level of effort and I'm just trying to find a euphemistic word they go very hard at it I've never ever experienced the level of difficulty I experienced the human rights cases that I've taken the Crown's really gone hard at it they've hired teams of seven lawyers and they've just gone at it full barrel and of course you've got a client with no resource what do you do any other questions or comments oh okay well now it's seven o'clock and we all want to go home and now you've got questions alright we've got three and you have to talk quickly yes because it's so difficult to fight a pair of groups and difficult to bring forward that had evidence to prove intersectionality discrimination what type of evidence are you trying to fight and what type of evidence have people been trying to bring forward to prove that they have been discriminating alright so I'm not going to keep you here for another hour so go and download the diversity matrix because it goes through all of the comparative countries but in particular go and look at the US cases and look at the Canadian cases so if I'm arguing an intersectional discrimination case a multiple ground discrimination case tomorrow that's where I'll go because I'll look at what it is they used and then I'll use that to try and give our court some comfort but this isn't going to result in floodgates because if I was acting for the employer I'd say oh my god you know floodgates and that's of course what happened in the UK and the government said oh alright and they didn't put that that amendment through in the law alright now there was another question here yes and then one over here ah very good so you go and read the same bits very good yes there you are look so that's great I think we're there we have a perhaps a few final words and the vote of thanks from the Deputy Dean Professor Susan Watson well thank you May and I'll be quick sorry I've been telling you May's talks for quite a few years now I think May has an absolutely rare talent a maxiability to pick up on issues that we don't even know are issues till May identifies them and I think that's an absolutely unique skill and some examples I can give her work on the public law toolbox which was about people ordinary people your hairdresser could use public law to enforce their own rights and then of course into superdiversity the fact that we don't just have diversity in New Zealand but we have superdiversity people who are diverse in lots of other ways and then tonight a kind of new spin on that a new lens and new focus which is how transformation and superdiversity intersect with this intersectionality that she was talking about so it's truly wonderful, truly thought provoking to get this all up on the edge of our seats and thank you very much May