Don't listen to Mark Richardson ... he's just wrong

There are still reasons for caution about Jacinda Ardern's rise to the Labour leadership. The fact she may one day have children is not one of them - and Mark Richardson doesn't understand how anti-discrimination law works.

There are, I think, legitimate reasons to sound some notes of caution about Jacinda Ardern's rise to the leadership of Labour. She undeniably has much promise in that role and her performance in the first 24 hours has been stellar. But still ... I am not yet fully converted (because I've been hurt so many times before).

First, the primary hope for Ardern seems to be that she finally will be the catalyst that sparks a reaction amongst the "missing million" voters who (it is alleged) ought to propel the left back into office. For reasons explained here by Danyl Mclauchlan, I remain quite pessimistic about this as a general political strategy. 

Second, while Ardern undoubtedly will help Labour stem the Greens' incursion into their left flank, the things that sustain National in its mid-high forty percent polling territory remain in place. The economy is, comparatively speaking, bouncing along. Unemployment is (nearly) back down to where it was before the GFC. The government coffers are full enough for some sweet, sweet largesse to flow back out to carefully targetted interests.

Yes, I know that the results of these "good times" are very unevenly spread. I know that New Zealand has some awful social problems that need urgently addressed.  But still ... some 63% of respondents in the latest Roy Morgan poll said they think the country is going in the right direction. Seriously, click on this link and tell me that these figures portray a country crying out for change.

Those are, I think, genuine reasons to caution that Ardern may not be quite the game changer that the initial sugar-rush-media-high reaction promises. However, one querulous response to her ascendence that has been galling is the seeming ubiquity of the "how can you be PM and also have kids?" narrative.

Ardern herself has chosen to take such questioning on the chin, accepting that as she has raised the issue in the past it is fair to ask her about it again now. But she quite justifiably hit back hard against Mark Richardson on Newshub's AM show when he suggested that the question in Ardern's particular case simply was part of a more generally reasonable line of inquiry.

Here's what Richardson said about why questioning Ardern's future family plans is quite OK:

I think this is a legitimate question for New Zealand. She could be the Prime Minister of this country. If you're an employer of a company you need to know that kind of thing from the women you're hiring, because legally you have to give them maternity leave. So the question is, is it OK for a PM to take maternity leave while she's in office?

Let me be completely blunt. Richardson is simply wrong about this and if any employer out there were to do what he suggests, they are inviting themselves a whole heap of legal trouble. Here's why.

Under the Human Rights Act 1993, it is unlawful to discriminate in employment on the basis of an applicant's "sex, which includes pregnancy and childbirth". An employer who asks his or her prospective female employees "when are you going to have kids?" because of concerns about covering for her while she does so is flat out breaking the law.

None of this is new or particularly secret information. The Human Rights Commission even puts out a pretty comprehensive "A to Z Guidelines for employers and employees about pre-employment" to inform the public about the issues involved. And these guidelines advise:

Can I be asked if I intend to have kids?

An employer should avoid asking questions relating to pregnancy, proposed pregnancy, contraception or family planning, or parenthood. Questions of this type would be at risk of breaching the Act as they could be seen as indicating an intention not to employ applicants who have responsibility for children or alternatively an intention not to employ applicants who do not have responsibility for children. 

But, of course, Richardson is simply a TV talking head who can't be expected to know how things work in the real world. So doesn't his ignorance of what the law says mean that it doesn't apply to him?

Is ignorance of the Act a defence to a complaint of discrimination?

No, ignorance of the Act is not a defence to a complaint of discrimination. An employer can also be liable for breaches of the Act by a recruitment consultant or by the acts of employees.

An employer may be liable for the acts of an employee unless the employer shows that reasonably practicable steps were taken to prevent the employee from doing the act.

Then there is another reason Richardson is plain wrong in his statement. It is not just woman who give birth who are entitled to "maternity leave" any more. There are now various forms of "parental leave" that can be claimed by either a birth mother or her partner (of either gender). So on Richardson's "reasoning", employers really need to ask any prospective new employee of any gender whether she or he, or his or her partner, plans to have children and if so how he or she intends to structure the childcare arrangements with her or his partner over all the various forms of leave available.   

I'm guessing that means Mark Richardson thinks one of the "legitimate" issues facing David Seymour is whether he will take any of the primary carer leave available to any future life partner he may meet, and how the two of them will divide the period of extended leave availble to them as a couple? Because while running the ACT Party and being a parliamentary undersecretary isn't quite the same as being PM, it certainly isn't nothing either. 

So Richardson was straight out wrong and Ardern's shooting him down was entirely justified - not just on gender politics grounds, but legal grounds as well. Leaving me with one last question.

I haven't really watched "TV" for some seven years now - I do box-sets and streaming like all normal people. Therefore, my memories of Mark Richardson are stuck in the days when he was a kind of goofy cricketer who would challenge competitors to sprint races in skin-tight outfits. All good, clean fun.

But since then he seems to have developed into an opinionator in the quasi-Mike Hosking mould, wherein being "controversial" is seen as being the same as "interesting and relevant". Does anyone have an explanation for me as to how this happened? Was Richardson always like this and I just didn't notice at the time? Or, did some particular event transform him? Or, did the slow heat of growing celebrity eventually kill off the quirky individuality and leave nothing other than an empty, souless husk that relies on attracting ever-greater levels of attention for its continuing existence? 

Answers below, please. 

[Update: As soon as I posted this, I saw this post by Human Rights Commissioner Dr Jackie Blue, which I really do urge you to read also.]