The New Zealand Herald
Woman wanted. Is that legal?
The admission by DDB advertising executive Wendy Clark in last Saturday’s Weekend Herald that she was only considering female candidates for a key job sparked a strong response from readers.
While Clark is looking for a woman to head DDB’s North American operation, a few wrote in questioning whether such an approach would be legal in this country, or whether it would amount to discrimination against male candidates who may want to put their hands up for the job.
Employment law specialist Catherine Stewart tells the Herald that while it is “usually illegal to discriminate on the grounds of sex,” under the Human Rights Act there is an important exception to this rule.
“Positive discrimination is allowed where it is done in good faith and ‘for the purpose of assisting or advancing people who may reasonably be supposed to need assistance or advancement in order to achieve an equal place with other members of the community’,” Stewart says.
She points out that the Human Rights Commission has recognised that ensuring people enjoy rights equally doesn’t always involve treating all people the same.
“It may be necessary to treat people differently if treating them the same will simply perpetuate existing differences. Any special measures to assist particular groups to achieve equality should be based on information that shows that the present situation is unequal.”
Asked how this rule might be interpreted in respect to Clark’s recruitment approach, Stewart points to the current makeup of the firm’s senior leadership team.
“Clark states that she has six regional leaders and five of them are men, which indicates that the situation is unequal from a purely gender perspective,” Stewart says.
“This may well give her grounds to apply a ‘positive discrimination’ approach in her recruitment practice.”
She warns, however, that in New Zealand the onus is always on the company to show that such a practice would be reasonably necessary in order to achieve equality.
“What is reasonable depends on what an objective person would consider reasonable in the circumstances,” the legal expert says.
“Inevitably this would involve an analysis of the numbers of male versus female employees in the organisation, particularly at leadership level, and of the respective roles and duties that they carry out.”
Clark’s adamant approach can be seen in the context of the US advertising market, which continues to have a heavy skew towards male leadership.
So what do the local numbers say? The most recent diversity research across the marketing and communications industry, released in 2017 by the Commercial Communications Council, indicated that 63 per cent of CEOs and managing directors identified as male, and 37 per cent as female.
But gender isn’t the only diversity issue hanging over the industry. There are also concerns when it comes to age and race.
While 23 per cent of the workingage population is 50-64, only 6 per cent of those sampled fell into this age group. Advertising has long been viewed as a young person’s game, but these figures offer a stark reminder that the industry has a tendency — conscious or not — towards offloading the over-50s.
The racial spread isn’t great either. Those who identify as ethnically European account for 87 per cent of industry staff, well above the 73 per cent figure across the New Zealand workforce. Ma¯ori were the most underrepresented, accounting for 4 per cent versus 13 per cent of the working-age population.
Comms Council chief executive Paul Head says new data set to be released in the coming weeks show some progress, but warns that there is still a long way to go.
Head says the Comms Council is working particularly hard at the moment to make advertising and communications more attractive to Ma¯ori and Pasifika Year 13 students who would otherwise overlook the industry.
Advertising isn’t the only place where progress is slow.
NZX diversity statistics released this year showed that women accounted for only 29 per cent of directors on the boards of the 50 biggest companies listed on the New Zealand stock market as of the end of last year.
This was up marginally from the 27.6 per cent in 2018, but men still account for more than 70 per cent of board members.
The lethargic trudge towards equality has led to some calls for New Zealand to follow the European lead and incorporate quotas specifying a required number of female board members for this country’s businesses.
The best example of this would be France, which in 2011 incorporated a law requiring that companies have at least 40 per cent women on their boards by 2020 or face penalties.
Data released this year showed the law delivered the desired effect: 44 per cent of company board positions are now filled by women.
Despite the success of quotas in some international examples, the policy continues to have opponents among both men and women, who argue that businesses should be left to hire who they choose and that quotas may hurt women by creating an impression that they don’t deserve to hold their roles. There’s also debate about whether such quotas boost profitability.
This makes it a prickly issue, which battles to get cross-party support in even the most collaborative government settings. And what we’re left with in the meantime is targets that businesses may or may not reach in the future.