Can an employer refuse to hire a former sex worker?

You may remember Lisa Lewis from the time she ran across a rugby pitch in a bikini that she later auctioned on Trade Me to pay her legal costs. Or you might remember her from the now defunct Alt TV, where “keeping abreast of the news” took on a whole new meaning as she became New Zealand’s first topless newsreader on the late-night show Naked News Flash.

Lewis is now making headlines across the ditch as she prepares to take the Northern Territory Police to court for discrimination after they rejected her application to work with them.

The OnlyFans model and sex worker applied for a position in response to the Northern Territory's call for recruits to address the recent surge in crime in Alice Springs earlier this year.

However, Lewis said that her application had been rejected on account of her disclosed history as a sex worker.

Newshub reports that Lewis has since reported the matter to the Northern Territory’s Anti-Discrimination Commission.

Discrimination based on work history

William Fussey, associate at Anderson Lloyd, told HRD that while Lewis may have grounds for a discrimination case in the Northern Territory, where the Anti-Discrimination Act 1992 prevents discriminating against an applicant’s work history or their engagement in sex work, there are no laws in New Zealand that prevent an employer from discriminating based on a person's work history.

“In New Zealand, this is unlikely to constitute discrimination as it would not come under any of the prohibited grounds of discrimination,” said Fussey. “Even the prohibited ground of ‘ethical belief’ does not assist as this is defined in the Human Rights Act 1993 as the absence of religious belief, which is not relevant to this situation.”

In New Zealand, prohibited grounds of discrimination include marital status, religious beliefs, ethical beliefs, colour, race, ethnic or national origins, disability, age, political opinion, employment status, family status, and sexual orientation.

Employer obligations under Privacy Act

While there’s nothing in either the Human Rights Act 1993 or the Employment Relations Act 2000 explicitly stopping employers from discriminating against former sex work, there are things employers should be mindful of when handling job applications that do disclose former sex work, most of which pertain to the Privacy Act 2020, said Fussey.

“An employer must ensure that the personal information they have been provided with as part of a job application is protected by such safeguards as are reasonable in the circumstances to protect against loss, access, use, modification, unauthorised disclosure or other misuse.”

This extends to not keeping personal information for any longer than necessary, not using the personal information for any other purpose other than the reason it was obtained, and not disclosing the personal information to any other person or agency, unless an exception applies.

“Although an applicant would unlikely be successful in a discrimination claim where the employer’s reason for not offering them a job was previous sex work, we would suggest employers properly consider whether this is a genuine reason to preclude an applicant, given this work is legal,” said Fussey.

“An employer may wish to adopt a less controversial reason for choosing not to employ someone, where that exists.”