Workplace Discrimination (Vic)
Discrimination is treating someone unfavourably because of a characteristic they have or are believed to have. Discrimination in the workplace is illegal in Victoria if it is made on the basis of age, breastfeeding, seeking entitlements, gender identity, disability, industrial activity, lawful sexual activity, marital status, parent or carer status, physical features, political belief or activity, pregnancy, race, religious belief of activity, sex, sexual orientation, an expunged homosexual conviction, or a personal association with anyone identified by these attributes. The attribute may be a past, current or presumed attribute.
Discrimination in Victoria is covered by the Equal Opportunity Act 2010. This article outlines discrimination in the workplace.
Direct or indirect discrimination
Discrimination can be direct or indirect. Direct discrimination occurs when a person treats or aims to treat another person with an attribute unfavourably because of the attribute. Indirect discrimination occurs when a person imposes or aims to impose a requirement, condition or practice that disadvantages, or is likely to disadvantage, another person with the attribute, and is unreasonable. Whether the requirement, condition or practice is unreasonable depends on the circumstances of the case, including:
- the nature and extent of the disadvantage;
- whether the disadvantage is proportionate to the result sought;
- the cost of an alternative;
- the financial situation of the person imposing the disadvantage;
- whether reasonable adjustments could be made to reduce the disadvantage or whether an alternative requirement, condition or practice is available.
A person’s motive is irrelevant in determining whether discrimination has occurred, as is whether the person acted alone or in company, and whether the discrimination occurred by doing an act or omitting to do an act.
In employment, it is unlawful for an employer to discriminate against a person:
- in choosing who should be offered a job;
- in the terms of employment;
- by refusing to offer the person a job;
- by denying the person access to promotion, transfer, training or other employment benefits;
- by sacking the person or otherwise ending their employment.
Discrimination law does not apply to employers when choosing staff for certain roles. These exceptions include:
- in domestic or personal services, such as when choosing a person for a carer or child-minding position;
- for the care of children, when discrimination is necessary to protect the physical, psychological or emotional wellbeing of children;
- when there is a genuine occupational requirement that a person:
- be of one sex, such as to preserve decency or privacy in searches, or for the fitting of sex-specific clothing;
- be of a particular race, age or sex for authenticity, such as in entertainment, photographic or modelling work;
- have a particular attribute, where welfare services for people with that same attribute can be most effectively provided by people with that attribute;
- have a particular disability, for authenticity or credibility;
- have a particular political belief, to work for a political party
A person is permitted under the Act to take special measures to promote or realise equality for people with a particular attribute. The special measure must be undertaken in good faith, be reasonably likely to achieve its purpose, and be proportionate and justified. Examples of a special measure include implementing a training program for indigenous people where those people are under-represented in an industry.
Carer’s responsibilities and disability
An employer must accommodate an employee’s responsibilities as a parent or carer. An employer must also make reasonable adjustments to cater for an employee with a disability. All the facts and circumstances must be considered, including:
- the nature of the responsibilities or the disability;
- the nature of the job;
- the employer’s financial circumstances;
- the size and nature of the business;
- the effect of making the changes, such as the cost, the number of people who would benefit, and the impact on efficiency and productivity;
- the consequences for the employer of making the changes;
- the consequences for the employee if changes are not made.
An organisation of employers or employees, or any other trade organisation, must not discriminate against a person, by refusing the person’s application for membership, or in the terms of membership. The organisation also must not deny or limit access to membership benefits, deprive a member or membership, or vary membership terms. Occupational qualifying bodies are subject to similar rules, in that they must not discriminate when making decisions about someone’s qualification, including whether to confer, renew, extend, vary, revoke or withdraw the qualification.
The Victorian Equal Opportunity and Human Rights Commission handles complaints by offering dispute resolution to the parties involved. A complaint must be made within 12 months of the alleged offence. If agreement is not reached, the matter can be referred to the Victorian Civil and Administrative Tribunal (VCAT). After hearing evidence from parties, the tribunal can find there was unlawful discrimination and make an order that:
- a party stop discriminating;
- compensation be paid;
- a party act to redress any loss, damage or injury suffered as a result of the discrimination.
It can also find that there was unlawful discrimination but take no action, or find there was no discrimination and dismiss the complaint.
For advice or representation in any legal matter, please contact Armstrong Legal.