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DISCRIMINATION & HARASSMENT

DO I HAVE A CASE?

In Queensland it is against the law for one person to discriminate against another person - but only on certain grounds and in certain areas and providing that no exemptions apply to the conduct. So, you will only have a case if the discriminatory conduct occurred on one of the grounds listed and in one of the areas listed below and providing the conduct complained of does not fall within one of the exemptions in the Anti-Discrimination Act 1991(Qld). 

Grounds

The Queensland Anti-Discrimination Act 1991 prohibits discrimination against someone because they possess certain attributes. These attributes are set out in section 7 of the Anti-Discrimination Act 1991. The Anti-Discrimination Act 1991 makes it unlawful to discriminate against a person on the basis of one or more of the following attributes:

  • sex;
  • marital status;
  • pregnancy;
  • parental status;
  • breastfeeding (this is a ground of discrimination only in the area of goods and services);
  • age;
  • race;
  • impairment;
  • religion;
  • political belief or activity;
  • trade union activity;
  • lawful sexual activity;
  • association with, or relation to, a person identified on the basis of any of the above attributes.

Areas

The discrimination must have occurred in one or more of the following areas:

  • work or work related areas;
  • education;
  • goods and services;
  • superannuation;
  • insurance;
  • disposition of land;
  • accommodation;
  • club membership and affairs;
  • administration of state laws and programs;
  • local government.

Exemptions

There are a number of specific and general exemptions which may apply to the discriminatory conduct. If an exemption applies your complaint may not be accepted by the Queensland Anti-Discrimination Commission. Even if you think an exemption may apply to the conduct, it is prudent to make a complaint to the Commission in any event. The Commission will then determine whether any exemption applies or not.

We strongly recommend you seek legal advice if you think an exemption applies to the conduct.

The Anti-Discrimination Act 1991 sets out a number of exemptions in different areas.

It is not unlawful to discriminate with respect to a matter if the conduct falls within one of the following general exemptions:

  • welfare measures;
  • equal opportunity measures;
  • acts done in compliance with -
  • legislation;
  • orders of courts;
  • existing provisions of orders or awards of a court/tribunal having power to fix minimum wages and other terms of employment;
  • existing provisions of industrial agreements;
  • orders of Anti-Discrimination Tribunal;
  • compulsory retirement age under legislation;
  • public health;
  • workplace health and safety;
  • religious bodies;
  • charities;
  • sport;
  • legal incapacity;
  • an exemption granted by the Tribunal.

Other more complex specific exemptions may apply with respect to each of the "Areas" mentioned above.

For example, in the work and work-related area it is not unlawful for an employer to discriminate against a person if the ground of discrimination is a "genuine occupational requirement" of the position. (eg. selecting an actor for a dramatic performance on the basis of their age, sex or race for reasons of authenticity.) It is necessary that the requirement for the position be a genuine one however.

We strongly recommend you seek legal advice from practitioners experienced in this area if you think that an exemption may apply to the conduct. 

DEFINITION OF DISCRIMINATION

There are two types of discrimination which are prohibited under the Anti-Discrimination Act 1991 - direct and indirect. 

Direct Discrimination

Direct discrimination on the basis of an attribute happens if a person treats, (or proposes to treat) a person with an attribute (such as sex or race) less favourably than another person without the attribute in circumstances that are the same or not materially different.

For example, discrimination occurs where an employer may deny a female job applicant a position simply because she is a woman. In these circumstances the female is treated less favourably than male applicants for the position. Another example would be where an Aboriginal person is refused service at the bar of a sporting club for no other reason apart from his or her aboriginality. In this case the Aboriginal person is treated less favourably than other people who are being served at the bar.

It is irrelevant that the alleged discriminator does not consider the treatment to be less favourable. Their motive for treating the person less favourably is also irrelevant. For example, an employer may attempt to relocate a pregnant employee or change her tasks because the employer assumes that she is not able to perform her current tasks or may find them physically demanding while she is pregnant. That assumption whilst it may be intended to assist the pregnant worker is not relevant. If the treatment is less favourable it may amount to discrimination.

If there are two or more reasons why a person treats or proposes to treat another person with an attribute less favourably, the person treats the other person less favourably on the basis of the attribute if the attribute is a substantial reason for the treatment. 

Indirect Discrimination

Indirect discrimination is not so much to do with the discriminatory behaviour or conduct of one person towards another person, but more to do with policies and practices which may have a discriminatory effect. Indirect discrimination occurs when a rule, practice or policy appears to be neutral but in fact has a discriminatory effect on a group of people.

An example of indirect discrimination would be a height or weight requirement imposed by a security company in their recruitment and selection of staff. The job advertisement may invite applications from all people over a certain height and a certain weight. In effect this would mean that a substantial number of women would not be able to apply for such a position and therefore not have the opportunity to be employed in that industry.

Because there are sometimes genuine policies that need to be applied, a party may be able to lawfully discriminate indirectly where they can show that the policy or practice is reasonable in all the circumstances.

The indirect discrimination legislation is very complex and complaints are sometimes difficult to prove. If you believe that you have been indirectly discriminated against you are urged to seek legal advice. 

Sexual harassment

Sexual harassment involves unwelcome sexual conduct of one person towards another person, and the harasser does so to offend the other person or a reasonable person would have been offended by the conduct. The harasser can be male or female, as can the victim.

There are various kinds of actions which might amount to sexual harassment. The major requirement, however, is that the conduct be unwelcome. The following kinds of sexual conduct may constitute harassment:

  • attempts at sexual intercourse or some other overt sexual connection;
  • kissing;
  • sexual propositions;
  • gender-based insults or taunting
  • intrusive questions at an employment interview;
  • unwelcome remarks about a person's sex or private life;
  • suggestive comments about a person's appearance or body;
  • sexually explicit conversations;
  • displays of offensive or pornographic material such as posters, pin-ups, cartoons, graffiti or calendars;
  • unwelcome requests for sex.

A person who has been sexually harassed may also have a claim that she or he has been discriminated against on the grounds of sex. This is complex and will require legal advice prior to lodging a complaint. 

Racial harassment

Racial harassment is defined in Queensland and federal legislation to mean threats, abuses, insults or taunts by one person to another person. Racial harassment is against the law if it occurs in a person's employment, in an educational institution, or in relation to a person's accommodation. 

Victimisation

In addition to the grounds of discrimination set out above, if a person is victimised because he or she has asserted their rights under equal opportunity legislation, this conduct may also be the subject of a complaint to the Equal Opportunity Commission. This protects a person from another person taking action against you, such as harassing or dismissing you from your employment, because you have complained about the employer. 

FURTHER INFORMATION

This Information Outline is provided courtesy of Hall Payne Lawyers who are experienced in this area of law. They are located at Level 9, 344 Queen Street, Brisbane, QLD 4000 or call them on (07) 3221-2044 if you would like more information on this legal topic, or you wish to obtain formal advice regarding your situation.

Hall Payne Lawyers are an established Queensland firm practicing in the areas of employment law (unfair dismissal etc), accident compensation (WorkCover, motor vehicle accident, personal injuries), anti-discrimination & harassment, consumer law, family law, wills & estates, criminal law and conveyancing. Hall Payne Lawyers are a founding member of the Australia-wide PeopleLaw group.

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