The EO Act protects certain people with certain attributes from discrimination on the basis of their attribute(s). Attributes protected under the EO Act are:

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

*A ‘characteristic’ includes assistance aids that a person with a disability uses or needs to alleviate the effects of the disability.  For example an assistance dog, a piece of equipment such as a therapeutic device or person (such as a carer or interpreter).

An assistance dog is defined as a dog that is trained to perform tasks or functions that assist a person with a disability to alleviate the effects of his or her disability).

Discrimination can take the form of direct or indirect discrimination (see further below) or a breach of one of the stand-alone duties in the EO Act. The stand-alone duties include:

Note that breach of these stand alone duties will amount to discrimination without needing to prove direct or indirect discrimination.

Further information is available from the VEOHRC website at www.humanrightscommission.vic.gov.au.

Direct discrimination: This 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.

Indirect discrimination: This may be more subtle, and happens when an unreasonable requirement, condition or practice is imposed in a particular situation (such as seeking a job) that has or is likely to have, the effect of disadvantaging a person with an attribute. For example, a requirement that a person 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 performing the duties of the job.

To establish whether a person has indirectly discriminated:

Whether a requirement, condition or practice is reasonable will depend on all the relevant circumstances. 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.

Not all acts of discrimination are unlawful, only those that occur in the following areas.

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.85). It includes a range of activities, for example: dirty jokes, touching, kissing, using sexually explicit computer screen savers or posters, and sending emails or SMS messages with sexual content.

Part 5 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.

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

The RRTA makes it unlawful to vilify a person on the basis of their race or religion, subject to the exceptions outlined below. Disputes in relation to vilification are handled under the provisions of the EO Act.

Racial vilification is conduct that incites hatred against, serious contempt for, or revulsion or severe ridicule of an individual or a class of people because of their race, colour, descent, ancestry, nationality or national origin, ethnicity or ethnic origin.

Religious vilification is conduct that incites hatred against, serious contempt for, or revulsion or severe ridicule of, an individual or a class of people because of their religious beliefs or activities.

The RRTA sets out a number of circumstances (exceptions) in which conduct does not amount to vilification. These include conduct engaged in reasonably and in good faith in the performance, exhibition or distribution of an artistic work, in making or publishing a fair and accurate report of any event or matter of public interest, or in the course of any statement, publication, discussion or debate about:

The meaning of "religious purpose" includes "conveying or teaching a religion or proselytising".

Certain private conduct is also exempted from the RRTA. Racial and religious vilification is not established if it occurred in such a way that it would be reasonable to expect that the parties' conduct was private (that is, it could not be heard or seen by anyone else). If the parties ought to have expected that their conduct may have been seen or heard by anyone else the private conduct exception does not apply.

A person's motive for engaging in vilifying conduct is irrelevant under the RRTA.

The RRTA also provides criminal sanctions for serious racial and religious vilification offences involving intentional conduct.

Further information about racial or religious vilification under the RRTA is available by contacting the VEOHRC (see: "Introduction", for contact details).