qpilch – discrimination law “ how healthy is your organisation? a legal service for...

QPILCH – Discrimination Law

“How healthy is your organisation?

A legal service for Not-for-Profit organisations”

Discrimination Law

Queensland Public Interest Law Clearing House Incorporated

presents

Wednesday 4 June 2008

Thanks to our kind sponsorBlake Dawson

Discrimination Law

204513265

June 2008

Belinda Morandini Lawyer


Session Outline

What is discrimination? When does discrimination apply? What are the common scenarios that arise in

the context of employment? What is sexual harassment? How does a person make a complaint of

discrimination or sexual harassment? Useful resources


Anti-Discrimination legislation

Queensland• Anti-Discrimination Act 1991 (Qld)

Commonwealth • Human Rights & Equal Opportunity

Commission Act 1986 (Cth)

• Racial Discrimination Act 1975 (Cth)

• Sex Discrimination Act 1984 (Cth)

• Disability Discrimination Act 1992 (Cth)

• Age Discrimination Act 2004 (Cth)


When does it apply?

Protected attributeParticular places or circumstancesDirect or indirectDoes an exemption apply?


Protected attributes

Age

Political belief or political activity

Race

sex

Breastfeeding

Relationship status / marital

status

Religious belief or religious

activity

Pregnancy and parental status

Impairment

Trade union activity

Lawful sexual activity

Sexuality

Gender identity

Association with or relation to a

person identified on the basis of

any of these attributes

Family responsibilities


Places where discrimination applies

Discrimination law only applies to certain areas of public life:

Education Work

Provision of Goods

And Services

Accommodation


Direct discrimination

Less favourable treatment

Because of an attribute

Same or similar circumstances

Motive irrelevant

May be more than one reason – but the protected attribute must be the substantial reason


Indirect discrimination

Requirement, condition or practice applied across the board

Person with an attribute can't or doesn't comply

Higher proportion of people without the attribute can or do comply

Not reasonable in the circumstances


Exemptions

Genuine Occupational Requirements• Example – an actor of a certain age/race/sex

• Example – security person to do body cavity searches on person of a particular gender

Necessary to protect the health and safety of people at work

• Example – truck driver with epilepsy


Exemptions

Unjustifiable Hardship• Employer will have to supply the person with

the attribute with special services or facilities

• The cost/benefit of the special services impose an unreasonable burden on the employer

Must be unjustifiable – not just hardship


Common Scenarios in Employment


Interviews

Applies to pre-employment conduct Cannot ask questions upon which

discrimination could be based• Example – do you have children?

• Example – are you a member of a union?

• Example – do you have injuries?


Can you ask anything?

Yes – but it must be necessary to determine if:

• The person can meet the genuine occupational requirements of the position

• If the person poses a workplace health and safety risk


Tips for Employers

Prepare a detailed analysis of the genuine occupational requirements of the position

Pre-plan the screening method• Ensure questions and any assessments are

directly connected to the genuine occupational requirements of the job

Pre-plan your questions• Is there any reason you cannot perform or may

suffer an injury if you perform [name of task]?


A right to part-time work after maternity leave?Right to part-time work?What are "reasonable efforts"?

• Tleyji v Travel Spirit Group [2005] NSWADT 294

• Mayer v ANSTO [2003] FMCA 2009


Tips for Employers

• Give full and proper consideration to an employee's request to work part time

• Can they swap positions with another employee?

• Are there part-time employees who want to work full-time?

• Can a job-share arrangement work?

• Trial the employee's proposal


Fitness for work

Consider• Can the employee carry out the genuine

occupational requirements of the position?

• What reasonable accommodations can be made?

• Is there an unacceptable risk to the employee's health and safety?


Tips for Employers

• Prepare a detailed analysis of the genuine occupational requirements of the position

• Does it require lifting? How heavy? How frequently? Confined spaces?

• Obtain specialist medical opinion as to whether the employee can perform these tasks safely

• Provide the employee with an opportunity to provide own medical evidence and provide alternatives


Termination of Employment

Anti-Discrimination Legislation Workplace Relations Act 1996 (Cth)Industrial Relations Act 1999 (Qld)


Other examples

Can a person be discriminated against because of homelessness?

• No – Homelessness is not a protected attribute

Can a person be discriminated against because they have a criminal record?

• Yes – but in limited circumstances


Sexual Harassment


Sexual harassment

Sexual advance or conduct of a sexual nature

Unwelcome conduct

Offends, humiliates or intimidates the other person

Based on a reasonable person's assessment


Conduct of sexual nature May be written, verbal or physical

Uninvited physical contact

Telling smutty jokes or making remarks of a like nature

Sexually explicit conversation

Touching or fiddling with a person's clothing

Staring or leering at a person or at parts of their body

Visual communication eg posters, graffiti

Offensive email message or computer screen savers

Includes any gesture, action or comment of a sexual nature in a person's presence


Sexual harassment can be

A single act

A course of conduct

Unwelcome conduct not aimed at someone directly, but part of a work pattern or culture


Sexual harassment laws …

Do not prohibit friendships or relationships between colleagues

Are not intended to make the workplace a grey and sterile environment

Do apply at work related social events, such as conferences and end of year parties


Other concepts in discrimination legislation

VictimisationTreating someone less favourably because they made a complaint or are involved in the complaint (eg witness)

Vicarious liabilityEmployer liable for employees acts unless can prove employer took reasonable steps to prevent conduct


Making a discrimination/harassment complaint

Complainant can choose to lodge a complaint under State or Commonwealth laws

Queensland • Anti-Discrimination Commission• Anti-Discrimination Tribunal• Supreme Court

• Queensland Industrial Relations Commission Commonwealth

• Human Rights and Equal Opportunity Commission (HREOC)

• Federal Court or Federal Magistrates Court• High Court

• Australian Industrial Relations Commission


Useful Resources

Anti-Discrimination Commission, Queensland - www.adcq.qld.gov.au

HREOC - www.hreoc.gov.au Criminal records –

http://www.hreoc.gov.au/human_rights/criminalrecord/on_the_record/download/otr_guidelines-01.pdf


The End

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