04. Anti-Discrimination Laws

Summary

Discrimination is broadly defined as the treatment of an individual or group more favourably or less favourably than another individual or group, on the basis of a specified attribute.

Discrimination

Anti-discrimination legislation makes it unlawful to discriminate on the basis of particular attributes. The attributes specified in the legislation in each jurisdiction differ slightly. However, in general they include the following:

• race, colour, nationality, descent and ethnic, ethno-religious and national origin;
• sex (which extends to pregnancy);
• marital status;
• disability;
• homosexuality;
• transgender status;
• carers responsibilities; and
• age

The legislation requires that the act of discrimination occur “on the ground of” or “by reason of” a person’s status, such as their sex or race. The aggrieved person must show that other persons in the same or similar circumstances were not subject to the less favourable treatment and that the reason for the less favourable treatment was the aggrieved person’s sex, race or other attribute.

The legislation only renders discriminatory conduct unlawful if it occurs in specified contexts, one of which is employment.

Certain types of behaviour may be classified as direct discrimination. This will occur in circumstances where a person who has a particular attribute (for example, is of a particular sex or race, or has a disability) is treated less favourably because of that attribute.

Other types of behaviour may be classified as indirect discrimination. Indirect discrimination is concerned with conditions or practices that may have a discriminatory effect upon particular groups of people as compared to others. For example, requiring all employees to be a certain height may have a discriminatory effect on employees of a particular race.

Harassment

The Commonwealth, State and Territory legislation dealing with harassment are all similarly expressed. Under the Anti-Discrimination Act 1977 (NSW), one person sexually harasses another where there is:

• an unwelcome sexual advance; or
• an unwelcome request for sexual favours; or
• other unwelcome conduct of a sexual nature; and
• the above conduct occurs in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated, or

Victimisation

Equal opportunity legislation prohibits, in general, victimisation of complainants for the reason that they have, among other prohibited grounds:

• brought a complaint or intend to bring a complaint; or
• made allegations that the perpetrator has engaged in unlawful conduct of a kind prohibited by the

Central to the concept of victimisation is the requirement that the complainant establish that he or she suffered a “detriment” and that the perpetrator had “subjected” the complainant to the “detriment” by reason of him or her asserting his or her rights under the legislation (or other prohibited reasons).

In addition, the Corporations Act 2001 (Cth) specifically prohibits victimisation of a whistleblower, being someone who has made a ‘protected disclosure’. The Corporations Act 2001 (Cth) also provides that if a whistleblower suffers damage because of such victimisation, the whistleblower can independently claim compensation for that damage from the offender.

Federal Anti-Discrimination Laws

In the Federal jurisdiction, each ground of discrimination is contained in a separate Act:

• Racial Discrimination Act 1975 (Cth)
• Age Discrimination Act 2004 (Cth)
• Disability Discrimination Act 1992 (Cth)
• Racial Discrimination Act 1975 (Cth)
• Sex Discrimination Act 1984 (Cth)
• Australian Human Rights Commission Act 1986 (Cth).

Whereas in the State jurisdictions, the various forms of unlawful conduct are generally set out in one centralised Act:

• Australian Capital Territory – Discrimination Act 1991
• New South Wales – Anti-Discrimination Act 1977
• Northern Territory – Anti-Discrimination Act 1996
• Queensland – Anti-Discrimination Act 1991
• South Australia – Equal Opportunity Act 1984
• Tasmania – Anti-Discrimination Act 1998
• Victoria – Equal Opportunity Act 2010
• Western Australia – Equal Opportunity Act 1984.

Behaviour prohibited by equal opportunity laws comprise four broad concepts:

• discrimination
• harassment
• vilification

Protections Against Harassment

Both Federal and State discrimination legislation provide for a process by which complaints of harassment are made to an administrative body which will investigate the complaint and attempt to achieve a settlement between the parties. If the matter does not resolve the complainant may seek to have the complaint heard by a tribunal or court.

In the state systems, the matter is typically handled by a board that specialises in dealing with equal opportunity matters (such as the Anti-Discrimination Board of NSW). As a first step, the board will conduct an investigation into the complaint. The complainant’s written complaint is given to the respondent to allow the respondent to prepare a response. Both parties may be asked to provide further information.

If the board considers that there appears to have been unlawful conduct and that the matter may be best resolved by the parties discussing the matter face-to-face, the next step is usually a conciliation conference. If the conciliation conference fails to resolve the matter, the complainant usually has the right to refer the complaint to a Tribunal (such as the NSW Civil and Administrative Tribunal in NSW) for a hearing and decision.

In the Federal system, complaints are made initially to the Australian Human Rights and Equal Opportunity Commission which will attempt a conciliation between the parties. If this is unsuccessful, the complainant may have the right to make an application to the Federal Court or the Federal Circuit Court.

Employer’s Obligation to Provide Reasonable Accommodations

Under equal opportunity legislation there is an obligation on employers to provide reasonable adjustments (or reasonable accommodation) for employees with disability.

Under the Disability Discrimination Act 1992 (Cth), an adjustment is taken to be reasonable unless the employer establishes that it would impose “unjustifiable hardship”. In determining whether a hardship would be an unjustifiable hardship, all relevant circumstances of the particular case must be taken into account, including the following:

• the nature of the benefit or detriment likely to accrue to, or to be suffered by, any person concerned;
• the effect of the disability of any person concerned;
• the financial circumstances, and the estimated amount of expenditure required to be made, by the first person; and
• the availability of financial and other assistance to the first person.

Similar adjustments are available under Victorian legislation. Under the Equal Opportunity Act 2010 (Vic), s 20 states that “the employer must make reasonable adjustments unless the person or employee could not or cannot adequately perform the genuine and reasonable requirements of the employment even after the adjustments are made”.

Although not expressly stated as an obligation to provide reasonable accommodations, the effect of prohibition on indirect discrimination is to require employers to consider whether conditions and requirements or practices in the workplace which impact adversely on particular employees are reasonable in the circumstances.

Remedies

The most common remedies are a declaration to the effect that unlawful discrimination has occurred and an award of damages to compensate the aggrieved person for the loss they have suffered as a result of the unlawful discrimination. Courts also have the power to grant injunctive relief (i.e. an order compelling or prohibiting certain conduct), order an apology, order that an employee be reinstated to their former position, order a retraction and vary the terms of an employment contract. It is unsettled whether the courts have the power to award exemplary or punitive damages that go beyond mere compensation. The present state of authority suggests that exemplary or punitive damages are not available.