Small businesses often just hire people they know and trust, which just seems like sensible risk mitigation.

But what about if the business keeps growing this way (above "small business" thresholds)? e.g. The owner only hiring people he discovers, and after that's infeasible, his highest trusted managers. I'm thinking of situations where you come to understand the skills somebody has and you say "Hey! You'd be really good at helping out with X work. You want a job?". You already know the person is timely, respectful, "fits the culture" etc.

To say another way: the business never advertises, but instead only invites individuals to work for them. It could even include a non-discriminatory screening interview to check suitability for the business' goals.

I can't find any information in any jurisdiction about discrimination related to selecting individuals for employment and "creating a role to fit"

Added later: I think it helps if you let go of capitalism and the idea that an organisation's purpose would be to maximise it's profits by generating valuable goods.
Think instead of an organisation that was founded with charitable intent and the business' value creation is of a more intangible manner: behavioural / relational / mental / spiritual.
Imagine a Third World charity requiring personal alignment / investment: sponsoring a child perhaps.
Or an anti-depression organisation requiring everybody to be kind and sensitive - even for less visible/interactive jobs like lawyers and accountants.

I'm pretty sure these criteria would be discriminatory in a advertised position.

I happen to be in New Zealand, but this really is theoretical.

  • Whether federal laws prohibit it or not, state laws may still apply. What jurisdiction?
    – cHao
    May 10, 2018 at 16:25
  • It is unlikely that a business would go from small to medium and not have a formalized hiring process. The ability to discriminate is still there (manager refers "X", but the hiring manager determines that "X" is female/male and they want a male/female). I'm not sure if that fits your question though?
    – Ron Beyer
    May 10, 2018 at 18:42
  • @RonBeyer It is almost impossible to get to medium without a formalized process. But it could be possible - I've tried to add reasons to the question of how a founder (and later upper management) could feel strongly enough to restrict diversity for the sake of unity and focus on goals.
    – Stephen
    May 11, 2018 at 11:34

1 Answer 1


The relevant bit of legislation — Human Rights Act 1993 s22 — protects applicants and employees:

Where an applicant for employment or an employee is qualified for work of any description, it shall be unlawful .. to refuse ... offer .. terminate ... retire ... by reason of any of the prohibited grounds of discrimination.

So, if you never advertise but always invite people (i.e. offer them job straight away) then there are no applicants (as at no point does anybody apply for the job), and hence no employment discrimination.

If you invite them for a "non-discriminatory screening interview" then there is no discrimination by definition of "non-discriminatory" :)

behavioural / relational / mental / spiritual

I'm pretty sure these criteria would be discriminatory in a advertised position.

None of those criteria are prohibited grounds of discrimination (s21).

However, it would be a good idea to clearly define them as "a genuine occupational qualification for the position" by drafting a job description and explaining why those traits are crucial for the business.

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