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DISCRIMINATION AND HARASSMENT

EQUAL OPPORTUNITY LAW - DO YOU HAVE A CASE?

In Western Australia it is against the law for one person to discriminate against another person - but only on certain grounds and in certain contexts. So, you will only have a case if the discriminatory conduct occurred on one of the grounds listed and in one of the contexts listed below. 

Grounds

Federal legislation and West Australian state legislation (Equal Opportunity Act (WA) 1984) make it unlawful to discriminate on the grounds of:

  • sex;
  • sexual harassment;
  • marital status;
  • pregnancy;
  • family responsibilities and family status;
  • race;
  • religious or political conviction;
  • physical and intellectual impairment; and
  • age.

Context

The discrimination must have occurred in the context of:

  • an employment relationship;
  • partnerships;
  • professional and other organisations;
  • employment agencies
  • education;
  • provision of goods or services;
  • disposal of land;
  • accommodation;
  • clubs or community service organisations;
  • municipal or shire councils; or
  • sporting organisations.

Time limitation period for filing a complaint

Complaints are required to be lodged at the Equal Opportunity Commission within 12 months of the discrimination occurring. The Commission will sometimes grant applications to extend the time limit, where the person making the complaint, has good reasons for the delay. 

Who is the complaint made against?

You can make a complaint against:

  • the person who you think discriminated against you;
  • their employer; or
  • both.

State and federal anti-discrimination law - which Act should be used?

In addition to the West Australian Equal Opportunity Act there is also federal law in this area. This includes the Human Rights and Equal Opportunity Commission Act, the Disability Discrimination Act, the Sex Discrimination Act and the Race Discrimination Act. It is often a difficult and complex decision to decide which Act should be used.

Knowing which Act you should make your complaint under is important because:

  • some complaints are easier to prove under federal law;
  • sometimes if you lodge your complaint in the wrong place, it can be fatal to your complaint;
  • it's possible to get more compensation under federal law than WA law; and
  • if you have been sacked from your job, the Workplace Relations Act may apply.

STEPS INVOLVED IN MAKING A COMPLAINT

Once you have lodged your complaint form, this is what happens. 

Investigation

A Commissioner for Equal Opportunity will investigate your complaint. The Commissioner can:

  • dismiss your complaint;
  • try to resolve it by a private conciliation conference (negotiation and agreement); or
  • refer it to the Western Australian Equal Opportunity Tribunal.

Inquiry / Hearing

If your complaint is referred to the Tribunal, there will be an inquiry or hearing. This is an informal court room style proceeding where both sides can put their case, call evidence and cross examine. The Tribunal will give a decision at the end of the hearing. 

Appeals

If you are unhappy, it is possible to appeal to a higher court. These appeals are difficult and you would need help from a lawyer.

DEFINITION OF DISCRIMINATION

There are two types of discrimination - direct and indirect. 

Direct discrimination

Discrimination is defined in anti-discrimination legislation as being where a person is treated less favourably on the basis of an attribute that the person may possess (such as race or sex or pregnancy).

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. 

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

Equal opportunity legislation in Australian which prohibits sexual harassment generally limits the prohibition to certain areas such as employment, education, provision of goods and services and accommodation. It is the case, however, that sexual harassment occurs more frequently in the area of employment than in other areas covered by equal opportunity legislation.

Sexual harassment involves unwelcome sexual conduct of one person towards another person where the victim believes that to reject the sexual conduct would disadvantage her or him. 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;
  • Touching or pinching;
  • 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 WA 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 Dwyer Durack Barristers & Solicitors who are experienced in this area of law. They are located at Dwyer Durack House, 40 St. Georges Terrace, Perth, WA 6000 or call them on (08) 9325-9277 if you would like more information on this legal topic, or you wish to obtain formal advice regarding your situation.

Established in 1914, Dwyer Durack is one of Western Australia's most respected and progressive law firms. It is the leading legal firm in Western Australia for the provision of a comprehensive service in the private client areas of personal injuries, family law, employment law, criminal law, consumer law and wills and estates. The firm comprises 13 Partners and a total compliment of 120 personnel. Dwyer Durack is a member of the Australia-wide PeopleLaw group.

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