In a recent case, Air NZ demoted one of its senior pilots when he turned 60. The reason was that the USA prohibits pilots from flying in its airspace if they are 60 years old or over (and most long-haul flights have to go through USA airspace).
The Employment Court said it was discrimination in breach of the Act.
The Court of Appeal said it wasn’t because the reason for the demotion was the US rule (not the pilot’s age particularly).
The Supreme Court found there was discrimination but the case fitted within the exception in that the pilot’s age was a genuine qualification of the job.
The matter has now been referred back to the Employment Court to determine the second question: whether Air NZ could reasonably have reshuffled its rosters to enable the employee to continue in his role?
Remember also there is a general exception for discrimination cases too. The employer can discriminate in terms of gender, ethnicity etc where that discrimination is a genuine requirement of the position. The range of jobs where this ability to discriminate on genuine grounds seems to be getting smaller and smaller but still exists.
The most common examples used are in the theatre/films etc where people of a certain ethnicity or race are required by the casting of the show.
Another widely used example is the selling of intimate apparel for women and in particular the fitting of bras. Here there is a generally accepted right to discriminate in favour of women for privacy and initimacy. The requirement to have only women fitting intimate apparel is a genuine occupational requirement, much like the issue surrounding the pilot and age.
