Victorian anti-discrimination law

It is illegal to directly or indirectly discriminate against a person because of a personal characteristic such as sex, race or disability, to sexually harass anyone or authorise or assist others, such as employees, to do so. Two pieces of legislation work together to combat discrimination and vilification in Victoria. Claims and disputes under the Acts can be made to the Commission established to administer them.

Key Acts

The Equal Opportunity Act 2010 (Vic) (“EO Act”) is Victoria’s anti-discrimination legislation. The aims of the EO Act are:

to eliminate discrimination, sexual harassment, vilification and victimisation to the greatest extent possible;

to further promote and protect the right to equality in the Charter;

to promote and facilitate the progressive realisation of equality as far as reasonably possible by recognising that:

discrimination can cause social and economic disadvantage and that access to opportunities is not equitably distributed throughout society,

treating everyone the same can lead to unequal outcomes, and that achieving substantive equality may require making reasonable adjustments and accommodations or taking special measures;

to enable the VEOHRC to encourage best practice and facilitate compliance with the EO Act, through education, research and enforcement; and

to enable the VEOHRC to resolve disputes about discrimination, sexual harassment, and victimisation in a timely manner, and provide direct access to the Victorian Civil and Administrative Tribunal for resolution of such disputes.

The Racial and Religious Tolerance Act 2001 (Vic) (“RRTA”) also provides protection against racial and religious vilification. Complaints about vilification can also be brought to the VEOHRC. It is possible to bring a dispute about racial or religious vilification and racial or religious discrimination under the EO Act to the VEOHRC simultaneously.

What is discrimination?

The EO Act protects people from discrimination on the basis of the following attributes:

sex;

pregnancy;

breastfeeding;

marital status (married, same-sex or heterosexual domestic partnership, single, separated, divorced or widowed);

race (colour, nationality, ethnic or national origin, descent or ancestry);

disability or presumed disability (including physical, intellectual or psychological disabilities and diseases and manifestations of a disability);

age;

industrial activity (e.g. being or not being a member, joining or refusing to join, an industrial organisation/association,

physical features (a person’s height, size or other bodily characteristics);

religious belief or activity;

status as a parent or carer;

employment activity (either making a reasonable request to an employer for information regarding their entitlements or expressing concern that some employment entitlements have not, or will not, be received); and

personal association (whether as a relative or otherwise) with a person who is identified by reference to any of the above attributes.

In October 2014 the Victorian Parliament passed legislation that introduced a new protected attribute: “expunged homosexual conviction”. This move will enshrine protection against discrimination for people who have old convictions for consenting homosexual sex removed from their record under part 8 of the Sentencing Act 1991 (Vic). At the time of writing (June 2015), this has not yet come into force; it is expected to do so on 1 September 2015.

Discrimination on the basis of an attribute includes discrimination on the basis:

that a person has the attribute or had it in the past (e.g. a person is denied a full-time position because they had a back injury that has now healed);

of a characteristic* that a person with that attribute generally has or is generally imputed to a person with that attribute (e.g. a person is denied a promotion on the basis that she has recently become pregnant, and it is assumed that female employees who have a family cannot take on more demanding work); or

that a person is presumed to have an attribute or to have had it at any time.

* A “characteristic” includes forms of assistance that a person with a disability uses or needs to alleviate the effects of the disability. Examples include equipment such as a therapeutic device, the assistance of a carer or interpreter, or an assistance dog – one trained to perform tasks or functions that assist a person with a disability to alleviate the effects of their disability.

Discrimination can take the form of direct or indirect discrimination, or a breach of one of the stand-alone duties in the EO Act, which include:

an employer – in organising working arrangements – must not unreasonably refuse to accommodate the responsibilities that a person has as a parent or carer;

an employer, firm, service provider or educational authority must make reasonable adjustments for a person with a disability, except where the employer, firm, service provider or educational authority complies with the disability standards under the Disability Discrimination Act 1992 (Cth) or a determination made under section 160B of the Building Act 1993 (Vic);

an accommodation provider cannot refuse to provide accommodation to a person with a disability because that person has an assistance dog; and

an owners corporation must allow a person with a disability to make reasonable alterations to common property to meet their special needs, provided a number of conditions are met (including that they pay for the alterations themselves, they do not require alterations to other people’s lots, the alterations do not adversely affect other people’s interests, and they agree to restore the common property to its previous condition before vacating their lot).

Note that breach of these stand-alone duties amount sto discrimination without needing to prove direct or indirect discrimination. Further information is available from www.humanrightscommission.vic.gov.au.

A person’s motive for engaging in discriminatory conduct under the EO Act is irrelevant. Similarly, in determining whether or not a person has directly or indirectly discriminated against someone, it is irrelevant whether they are aware of the discrimination.

Direct and indirect discrimination

Direct discrimination

Direct discrimination occurs when a person with a particular attribute is treated (or proposed to be treated) unfavourably because of that attribute. The focus of the test for direct discrimination is on the consequences of the treatment. For example, a person is informed that even though they were the best applicant for a job, they have been unsuccessful because they are too young. It doesn’t matter if there is more than one reason for the treatment, as long as the attribute is a substantial reason.

Indirect discrimination

Indirect discrimination may be more subtle, and happens when an unreasonable requirement, condition or practice is imposed in a particular situation (e.g. seeking a job) and appears to treat people the same, but has, or is likely to have, the effect of disadvantaging people with an attribute. For example, a requirement that job applicants be at least 175 cm tall in order to work in a particular job may be indirectly discriminatory against women and/or people of certain ethnic backgrounds, unless being that height is crucial to perform the duties of the job.

To establish whether a person has experienced indirect discrimination, two factors need to be considered:

1 The person claiming discrimination needs to show that the requirement, condition or practice has (or is likely to) disadvantage them, because of their attribute.

2 The person who is alleged to have imposed – or proposed to impose – the requirement, condition or practice cannot prove that the requirement, condition or practice is reasonable.

Whether a requirement, condition or practice is reasonable depends on all the relevant circumstances, and it is the obligation of those seeking to impose the requirement, condition or practice to prove its reasonableness. These include the nature and extent of the disadvantage; whether the disadvantage is proportionate to the result sought; the cost of alternatives; the financial circumstances of the person imposing or proposing to impose the requirement, condition or practice; and whether reasonable adjustments can be made to lessen the disadvantage.

Duty holders – including employers, educational authorities, and providers of goods and services – should also be aware that under the EO Act, they have a positive duty to take reasonable and proportionate measures to eliminate discrimination, sexual harassment and/or victimisation as far as possible (s 15). Further information about positive duty is below.

Areas of discrimination

Not all acts of discrimination are unlawful under the EO Act. Unlawful acts of discrimination are only those that occur in certain areas of public life on the basis of a protected attribute. The areas of unlawful discrimination are:

Employment, including hiring, terms and conditions of employment, promotion or training, access to programs and dismissal, as well as subjecting an employee or contract worker to any detriment. This area includes the engagement of contract workers, partnerships, joining trade or professional organisations, the activities of employment agencies and the requirements of qualifying bodies;

Educational authorities, including schools, colleges, universities and other educational institutions;

Goods and services, including banking services such as provision of credit, finance, and insurance; entertainment, recreation, hospitality, transport and travel; the services of a profession or trade; access to public places; and the services of a local government authority, council, state-owned enterprise or government department;

Accommodation, such as renting flats, houses, units, motels, hotels, caravans, business accommodation, mobile homes and camping sites;

Clubs and club members (e.g. membership or access to facilities): the EO Act defines a club as an association of more than 30 persons associated together for social, literary, cultural, political, sporting, athletic or other lawful purposes that has an ongoing licence to supply liquor and operates its facilities wholly or partly from its own funds;

Disposal of land;

Sport: including refusing or failing to select a person or excluding a person from participating or competing in a sporting activity (although note the exception in relation to competitive sporting activities);

Local government: a councillor against another councillor or member of a council committee.

Employers and principals are vicariously liable for the discriminatory conduct of their employees or agents (s 109), unless they can demonstrate that they took reasonable precautions to prevent the conduct from occurring (s 110). This means the employer or principal is taken to have done the discriminatory act that their employees or agents have done, and are responsible for any remedy that might arise out of it, such as payment of compensation.

Sexual harassment

Sexual harassment means an unwelcome sexual advance, an unwelcome request for sexual favours, or other unwelcome conduct of a sexual nature, in circumstances in which a reasonable person would have anticipated that the other person would be offended, humiliated or intimidated (s 92). Sexual harassment can be a range of different activities; for example, dirty jokes, unwanted touching or kissing, using sexually explicit computer screen savers or posters, requests for sexual favours, and sending emails or SMS messages with sexual content.

Part 6 of the EO Act prohibits sexual harassment in the areas of employment, provision of goods and services, accommodation, clubs and local government. The Act also prohibits sexual harassment in relation to industrial organisations, qualifying bodies, partnerships and educational institutions.

The definitions of “employment” and “employer” include volunteers and unpaid workers, but only in relation to the prohibition against sexual harassment. In practice, this means that it is unlawful for an employer, employee or volunteer worker to sexually harass a volunteer worker in the areas of public life listed above.

Sexual harassment in employment also includes harassment of job applicants, volunteers, between co-workers and in common workplaces. A common workplace refers to any place that a person attends for the purposes of carrying out any function(s) in relation to their employment, occupation, business, trade or profession and need not be the person’s principal place of business or employment. It is not necessary for both parties to be employed by the same employer, provided the harassment occurs in a place that is a workplace of both of them.

Employers are vicariously liable for sexual harassment conducted by any employees or agents unless they can demonstrate that they took reasonable precautions to prevent the sexual harassment from occurring.

Employers should also be aware that under the EO Act, they have a duty to take reasonable and proportionate measures to eliminate discrimination, sexual harassment and/or victimisation as far as possible (s 15). Further information about positive duty is included below.

Other conduct covered by the EO Act

Victimisation

Under the EO Act, victimisation refers to subjecting a person to, or threatening to subject a person to, any detriment because the person or someone the person is associated with has done anything, or is believed to intend to do something, in accordance with the EO Act (s 104). This includes:

making a complaint that there has been a breach of the EO Act;

bringing a dispute to the VEOHRC or bringing proceedings under the EO Act;

giving evidence in relation to a dispute;

attending a compulsory Victorian Civil and Administration Tribunal (VCAT) hearing;

refusing to engage in discriminatory conduct or sexually harass someone; and

alleging that someone else contravened the EO Act.

It is not necessary to prove that discrimination occurred in order to bring a claim of victimisation.

Authorising or assisting discrimination

A person must not request, instruct, induce, encourage, authorise or assist another to contravene the EO Act (s 105). If a person acts in any of these ways, a dispute can be brought to VEOHRC, or an application can be made to VCAT against that person. If the other person (who has been requested, instructed, encouraged, authorised or assisted) proceeds to contravene the EO Act, a dispute can be lodged against both persons (s 106).

Discriminatory request for information

The EO Act prohibits a person asking for information that could potentially be used to discriminate against another person (s 107). An exception may apply if the information sought is reasonably requested or required for a nondiscriminatory purpose (s 108). For example, employers should not ask questions about a job applicant’s religion or parental or carer responsibilities in interviews, unless they have a genuine non-discriminatory reason for doing so.

A person who believes that they have been asked for information that could be used to discriminate against them can bring a dispute to the VEOHRC. The matter would be dealt with in the same way as a dispute about discrimination.

Advertisements

It is an offence under the EO Act to publish or display, or authorise the publication or display of, an advertisement or notice that indicates an intention to discriminate unlawfully (s 182). For example, it is likely to be unlawful to indicate in a job advertisement that job applicants should be 30 years or over.

Positive duty

The EO Act creates a positive duty to eliminate discrimination, which obliges duty holders under the EO Act to take proactive, reasonable and proportionate measures to eliminate discrimination, sexual harassment and victimisation.

The reference to “reasonable and proportionate measures” and the qualifying words “as far as possible” aim to ensure that the level of compliance required is appropriate and proportionate to the size and operations of the duty holder, taking into account:

the outcome that the duty seeks to achieve;

the size of the duty holder, their resources and service priorities; and

the practicability and cost of compliance.

It is not possible to bring a claim for breach of the positive duty, but it is something that the VEOHRC might investigate.