Time to focus on indirect discrimination: lawyer

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Time to focus on indirect discrimination: lawyer

While most employers now understood the concept of direct discrimination, and had policies in place to prevent it, they were lagging when it came to indirect discrimination, an employment lawyer told a recent Sydney conference.

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While most employers now understood the concept of direct discrimination, and had policies in place to prevent it, they were lagging when it came to indirect discrimination, an employment lawyer told a recent Sydney conference.

Therese MacDermott, industrial counsel with Cutler Hughes & Harris, told delegates to ACIRRT's 10th annual labour law conference last week that two concepts which seemed to present 'particular difficulties' for employers had been introduced as a way of moving beyond the direct/indirect discrimination paradigm.

She said those concepts - the inherent requirements of the job and unjustifiable hardship - had first appeared in disability discrimination legislation and more recently in the NSW Carers' Responsibilities Act (see 194/2001). In a paper presented at the conference, she said the concepts, still relatively new, had presented difficulties in their interpretation and application.

But, she said, 'I think this is the step we all had to make - to move beyond law to an understanding of the accommodations required'. She said the simple adjustments that were often required in such cases were 'the direction we're moving in, in relation to all anti-discrimination law'.

The question of what was a reasonable response from employers in the circumstances had been variously interpreted and applied. MacDermott said as far as employment law went, the courts had tended to run the two concepts together, despite the fact that the defence to discrimination under federal and state anti-discrimination laws was that the employee was either unable to carry out the inherent requirements of a job or that providing services or facilities for those employees to do their jobs would place an unjustifiable hardship on an employer.

In most cases, she said, unjustifiable hardship had not been substantiated once the inherent requirements of the job had been dealt with. Therefore, the inherent requirements were pivotal to discrimination cases. She urged employers to avoid generalised concerns in such situations, and really focus on whether there was a genuine issue.

MacDermott also revisited the Schou case, where a Hansard reporter had originally won a claim against her employer for not providing her with a modem to work from home to care for her sick son.

She said the decision of a Victorian Supreme Court judge (see 101/2001) who had remitted the case to the Victorian Civil and Administrative Tribunal, saying it had focused too much on the effect on Schou and not given sufficient weight to whether the attendance requirement was reasonable for the employers, had 'raised hairs' amongst some parties.

There were now two views on the decision, MacDermott said - that it was totally out of kilter with the general trends in anti-discrimination law, or that it gave back some management prerogative and acknowledged the limitations of law in remedying wider social issues. She said it would be interesting to see the final outcomes in the case, as it illustrated the difficult balance involved in ensuring fairness all round.

 

 

 
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