Discrimination

Discrimination means the differentiating of treatment of a person arbitrarily based on race, colour, sex, language, religion, politics, national or social origin, property, birth, or other status.

 
 
Overview
 
This expression means the differentiating of treatment of a person arbitrarily based on race, colour, sex, language, religion, politics, national or social origin, property, birth or other status, thus violating the principle of equality before the law, or any such distinction which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation. The laws concerning discrimination in employment are not all uniform, being scattered between federal and state jurisdictions. In general, industrial instruments do not override state or federal anti-discrimination laws.
 
Relevant legislation
 
Apart from the Fair Work Act, there are federal, state and territory anti-discrimination laws that prohibit discrimination, harassment, victimisation, bullying and (in some jurisdictions) vilification in various areas of public life, including in the workplace. Such legislation includes:
Age Discrimination Act 2004 [Cth] - protects against age
Anti-Discrimination Act 1977 [NSW] - protects against race, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities.
Anti-Discrimination Act 1992 [NT] - protects against race, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion.
Anti-Discrimination Act 1991 [Qld] - protects against race, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion.
Anti-Discrimination Act 1998 [Tas] - protects against race, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion.
Disability Discrimination Act 1992 [Cth] - protects against physical or mental disability.
Discrimination Act 1991 [ACT] - protects against race, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion.
Equal Opportunity Act 1984 [SA] - protects against race, sex, sexual preference, age, physical or mental disability, marital status, pregnancy. 
Equal Opportunity Act 1995 [Vic] - protects against race, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion.
Equal Opportunity Act 1984 [WA] - protects against race, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion.
Racial Discrimination Act 1975 [Cth] - protects against race, colour, national extraction, social origin.
Sex Discrimination Act 1984 [Cth] - protects against sex, sexual preference, marital status, family or carer’s responsibilities, pregnancy.
There are two types of discrimination that are prohibited by legislation, direct and indirect.
 
Direct discrimination
 
This occurs where a person is treated less favourably based on a prohibited ground of discrimination. For example, direct racial discrimination arises if an employer refuses to employ a person based on their race. If an employer refuses to promote an employee because she is a woman, this amounts to direct sex discrimination.
 
Indirect discrimination
 
This occurs where a condition, policy or requirement is imposed that a person with a specific attribute cannot comply with, but with which a substantially higher proportion of people without the attribute can comply. For example, the police force previously imposed a requirement that all police officers must be over six feet tall. This requirement gave rise to indirect race and sex discrimination as, even though the requirement was imposed on every candidate, it indirectly discriminated against groups who are characteristically less than six foot, including women and various ethnic groups.
 
The concept of indirect discrimination was first developed in the United States in relation to practices which had a disproportionate impact upon black workers as opposed to white workers. Both direct and indirect discrimination therefore entail one person being treated less favourably than another person. The major difference is that in the case of direct discrimination the treatment is on its face less favourable, whereas in the case of indirect discrimination the treatment is on its face neutral but the impact of the treatment of one person when compared to another is less favourable.
 
The High Court summarised the distinction between direct and indirect discrimination as follows: 'Broadly speaking, direct discrimination occurs where one person is treated in a different manner (in a less favourable sense) from the manner in which another is or would be treated in comparable circumstances on the ground of some unacceptable consideration (such as sex or race). On the other hand, indirect discrimination occurs where one person appears to be treated just as another is or would be treated but the impact of such 'equal' treatment is that the former is in fact treated less favourably than the latter'. See Waters v Public Transport Corporation [1991] HCA 49.
 
Adverse action — Fair Work Act
 
The Fair Work Act (s.351(1)) prohibits adverse action against an employee or prosepctive employee because of the person's race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

The exceptions to this prohibition include where the particular action is taken because of the inherent requirements of the job or where the action would not be unlawful under state, territory or federal equal opportunity legislation.

The law recognises that discrimination may be direct or indirect. Under the Fair Work Act, there are prohibited reasons for termination which give rise to unlawful termination. As well, a number of actions such as dismissing, refusing to employ, injuring an employee in his/her employment, altering an employee’s position to his/her detriment, discriminating against the employee in his/her employment, or threatening any of these actions are, if undertaken for a prohibited reason, unlawful. Discrimination in the dismissal is regarded under the Fair Work Act as ‘adverse action’.


Incapacity of employee
 
There can be exceptional circumstances relating to terminating an injured worker’s employment. An employee suffered an injury which prevented him working as a 'baggage handler' for an airline. He was given alternative work of a clerical and administrative nature during his substantial rehabilitation period. That work was not within the ambit of 'baggage handler' duties. The employer terminated his services after 6 years because his injuries had not resolved, and continued to be unable to perform work as a baggage handler.

The Full Court of the Federal Court held that the termination of the employee’s employment did not involve a breach of the Disability Discrimination Act 1992 because the employee was unable to perform the 'inherent requirements of the particular employment'. See Cosma v Qantas Airways Limited [2002] FCAFC 425.

Disability
 
The Fair Work Act (s351) defines the meaning of ‘discrimination’ and includes the term ‘disability’. Disability-based adverse action claims made by employees are unlikely to be successful unless the employee is able to demonstrate that adverse action was taken because of the disability itself. It appears that an employer will not breach the prohibition on taking adverse action based on an employee’s disability if the action is taken due to the consequences of the disability, such as absence from work, for example. See Hodkinson v Commonwealth [2011] FMCA 171.
 
Can failed litigant in the Fair Work Commission also make EEO claim?
 
Employees may lodge claims of either unfair dismissal or unlawful dismissal under the Fair Work Act. Section 351 of the Fair Work Act states that an employer may not take adverse action against an employee, or prospective employee, because of that person’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction, or social origin.
 
An employee must not commence other termination proceedings if the ‘subject matter of the complaint’ is the same as that brought before the Fair Work Commission or federal circuit court.
 
In Deva v University of Western Sydney [2008] NSWCA 137, 17/6/08, the NSW Court of Appeal found the subject matter before the AIRC and that before the NSW Administrations Decisions Tribunal were not the same subject matter. Section 92(1) of the Anti-Discrimination Act 1977 [NSW] states that the Anti-Discrimination Board may decline a complaint if another more appropriate remedy has been, is being, or should be, pursued in relation to the complaint or part of the complaint, or the subject-matter of the complaint has been, is being, or should be, dealt with by another person or body. A complaint to the Fair Work Commission regarding an employee’s poor performance would not prevent a successful complaint to the Anti Discrimination Tribunal if the second complaint was for a different reason and not dealt with in the first complaint, eg the dismissal was based on racist grounds.
 
Not unlawful under anti-discrimination law
 
The operation of the Fair Work Act (s351) is limited by reference to exceptions derived from anti-discrimination legislation. The following table sets out the general protections provisions concerning adverse action taken for discriminatory reasons set out in the Fair Work Act and compares the protections under each. Additional state-specific prohibited grounds of discrimination are not included in this table.
 
A person needs to be covered by a protection by either a Commonwealth law or applicable State or Territory law for the protection to apply.
 
For example, a person in South Australia is not covered for ‘family or carer’s responsibilities’ under the Equal Opportunity Act 1984 [SA]; however, because they are also covered by the Sex Discrimination Act 1984 [Cth], they have protection for family or carer’s responsibilities.
 
Conversely, the only exclusion is for people in New South Wales and South Australia who are seeking protection on the grounds of ‘religion’ or ‘political opinion’  - neither State’s law provide that discrimination on these grounds is unlawful and there is no Commonwealth law which provides protection for these grounds. As a result people in New South Wales or South Australia would not be eligible to make a general protections application in respect of adverse action taken on the grounds of religion or political opinion.
 
However, these persons would be eligible to make an application for unlawful termination instead if the adverse action was constituted by a dismissal, as religion and political opinion are expressly covered and these protections extend to ALL Australian workers (provided that the reason for the decision was not based upon the inherent requirements of the particular position concerned and the person was not dismissed by an institution conducted in accordance with a religion or creed in good faith and to avoid injury to the religious susceptibilities of adherents of that religion or creed).
 
Exceptions to discrimination
 
There are exceptions where it is not unlawful for an employer to discriminate against a person. The main exceptions include:
  • where the person’s disability prevents them from performing the inherent requirements of the job
  • where a person with a disability requires special services or facilities to do their work and the provision of those special services or facilities would cause unjustifiable hardship to the employer
  • where there is genuine occupational requirement for a job that a person be of a certain sex or race
  • where discriminatory acts are done in direct compliance with legislation, and
  • where otherwise discriminatory acts are reasonably necessary to promote health and safety.  
Inherent requirements of the job
 
A company that withdrew a job offer, on the grounds the applicant had various medical conditions that prevented her from performing the essential physical aspects of the role, was found not guilty of unlawful disability discrimination. The offer of employment was conditional upon her satisfactorily completing a pre-employment medical examination. Following the examination, the doctor advised the company not to employ the person on the grounds that there was a high risk of a workers compensation injury, including an aggravation of her existing conditions. He indicated the person was significantly impaired from performing the inherent physical requirements of the proposed position.
 
The Tribunal determined that the company would need to employ two persons instead of one to carry out 30% of the person’s duties and was viewed as being an unjustifiable hardship on the company. See Duncan v WaterTech Pty Ltd [2011] NSWADT 176.
Reasonable adjustments 

Under the Disability Discrimination Act 1992 [Cth], a failure to make reasonable adjustments can be found to be unlawful discrimination. The definition of ‘reasonable adjustment’ is an adjustment to be made by a person is a reasonable adjustment, unless making the adjustment would impose an unjustifiable hardship on the person.
 
An employer would need to look closely at any adjustments that may be able to be made to accommodate a person’s disability. Some examples may include:
  • changing an employee’s reporting line where an employee claims he or she cannot work with a particular manager due to his or her anxiety/depression
  • providing accessible amenities on the floor a disabled employee works on, or
  • adjusting meeting arrangements to accommodate an employee’s disability.
Company policy – reasonable adjustment
 
It is recommended that a company have a reasonable adjustment policy so there is consistent application by management within the organisation. The essential elements of a reasonable adjustment policy include:
  • Meet requests for alternative formats, eg. electronic format, Braille, large print, audio/CD.
  • Ensure position description focuses only on inherent requirements.
  • Provide a contact person to answer questions regarding any available positions.
  • Focus on applicant’s capacity to fulfil inherent requirements of the job.
  • Ask all applicants if adjustments are required when organising interview
  • Adjust assessment process as requested, eg. sign language interpreter, accessible venue
  • Let reception and panel members know of adjustments beforehand
  • Ensure testing/assessment processes are carefully considered and adjusted for the specific candidate
  • Ensure medical assessment relates to the inherent requirements of the job and considers reasonable adjustments
  • Health or disability related questions should be accompanied by opportunity to request reasonable adjustments and information about who will receive information
  • You can only collect medical information if it relates to: industry risk, carrying out tasks inherent to the job, or OH&S requirements
  • Action a ‘request for workplace adjustments’
  • Respond to the request in a timely manner
  • Monitor timeline for implementation
  • Review for effectiveness
  • Materials and locations are accessible to employee
  • Presenters know how to make adjustments
  • Ask EEO questions after appointment has been made.
For more information see the Australian Network on Disability website at www.and.org.au
 

 

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