National Hepatitis C Anti-discrimination Project Anti-discrimination Advocacy Training Sydney, 9th May 2003

Program outline What NSW and federal anti-discrimination laws cover When is it against the law to discriminate How to make a complaint What happens once a complaint is made Options for action

Scenario A man and his son are involved in a head on collision. The son is badly injured. At hospital the surgeon looks at the boy and says “I can’t perform this operation. That’s my son.” How can this be?

NSW anti-discrimination laws Anti Discrimination Act 1991 (ADA) ADA administered by the Anti Discrimination Board of NSW (ADB)

Federal anti-discrimination laws Disability Discrimination Act 1992 (DDA) DDA administered by the Human Rights & Equal Opportunity Commission (HREOC) There are also federal laws that cover race and sex discrimination

What do The ADB and HREOC do? Provide information & advice about people’s rights under anti-discrimination laws

What do the ADB and HREOC do? Investigate and conciliate complaints Educate people about their rights and obligations under anti-discrimination laws Advocate to improve protection provided by anti-discrimination laws

Getting information early Talk to the ADB or HREOC enquiry services early on Helping people find out about their rights isn’t just about making a complaint People need to know about their rights and where to get information This can makes it easier to resolve problems early on, without needing to make an anti-discrimination complaint

What next? What does ‘discrimination’ mean under anti-discrimination law? In what circumstances is it against the law to discriminate? (areas)

What is discrimination? Sometimes discrimination is obvious, sometimes it’s harder to identify Discrimination can be either ‘direct’ or ‘indirect’

Direct discrimination Direct discrimination occurs where a person with hepatitis C is treated ‘less favourably’, in similar circumstances, than a person who does not have hepatitis C

Direct discrimination Marco attended an emergency department with a badly broken ankle. When he told the surgeon that he had hepatitis C, she refused to treat him.

Indirect discrimination An unreasonable requirement or condition is imposed, which people who does not have hepatitis C could comply with and people with hepatitis C cannot.

Indirect discrimination Bob decides that his employees can have an extra day off per year, if they donate blood to the local hospital twice each year. This looks fair because it is offered to all employees, if they agree to donate blood. But the benefit is conditional upon being able to donate blood. One of Bob’s employees, Jackie, has hepatitis C and can’t donate blood, so she can’t benefit.

Indirect discrimination It unlikely that the condition would be considered reasonable. People with hepatitis C can’t donate blood for a good reason - so that hepatitis C won’t be transmitted through the blood supply. But Jackie shouldn’t be denied the same benefits as other employees just because she can’t donate blood.

Disability discrimination The ADA and the DDA make it unlawful to discriminate against a person with a disability Includes - current, future, past or assumed disability

Hepatitis C discrimination The ADA & DDA definition of disability both cover: people with hepatitis C people assumed to have hepatitis C people who are discriminated against because of their association with a person with hepatitis C

Drug dependence discrimination It is common for people to be discriminated against because they use illicit drugs, have done in past or are assumed to do so The law is unclear about whether drug dependence is a ‘disability’ Discrimination on the basis of a person’s actual, assumed or past drug dependence may amount to disability discrimination

Case study: facts Mark had been employed as a store man for 3 years He told a friend at work that he occasionally injects speed Somehow Mark’s boss found out Mark was sacked

Case study: analysis If Mark’s drug use was not effecting his ability to do his job, this may be amount to disability discrimination Mark would need to prove that he was discriminated against because his boss assumed that he had a disability (i.e that he was drug dependant) If his boss sacked him because he assumed Mark had hepatitis C, this would be covered by anti-discrimination laws

When is discrimination unlawful? Discrimination is prohibited in many areas of public life Anti-discrimination laws do not cover things said or done in private e.g excluded by family

Discrimination is against the law: at work by employment agencies in provision of goods & services in educational settings by registered clubs providing accommodation by qualifying bodies e.g bodies which authorise the practice of a profession or trade

Discrimination in employment Includes applicants for jobs e.g: refusing to employ a person with hepatitis C

Discrimination in employment Includes employees, contract workers, partnerships Examples: denied promotions or training opportunities dismissed from employment harassed at work

Pre-employment medicals An employer has the right to ask a person to undertake a pre-employment medical assessment But only if necessary to assess if the person can do the essential requirements of the particular job In most cases having hepatitis C will not be relevant to a person’s ability to do most jobs In rare cases, such as jobs which involve exposure prone procedures, a person’s hepatitis C status may be relevant

Case study: Dentist Janis is seeking another dentist to work in her dental clinic An essential requirement of the job is being able to undertake exposure prone procedures safely After interviewing three people, Janis decides her preferred candidate is Ian Janis ask Ian to undergo a pre-employment medical to make sure he can do the essential requirements of the job

Pre-employment medicals If a pre-employment medical is: required assessment discloses that person has hepatitis C having hepatitis C is not relevant to the person’s ability to do the job person is not offered the job then this may be discrimination

Discrimination can be: Goods and services Discrimination can be: refusing to provide the goods or service making it more difficult to get the goods or services e.g making a person wait longer because they hepatitis C

Goods & services discriminating in the way in which the service is provided e.g harassing the person in the course of providing a service

Harassment Harassment is a type of discrimination Harassment is any conduct that is humiliating, offensive, intimidating, insulting or ridiculing Covered by ADA & DDA when in areas covered by the laws e.g work, services, clubs etc

Requesting information It against the law to ask a person for information on which discrimination may be based (DDA only) Example: dentist asks for disclosure on patient forms

Requesting information It may not be discriminatory to ask for the information if the person seeking it can show they needed the information for a reason that was not discriminatory Example: An insurer can ask for information about a person’s health if a person is seeking life insurance The insurer requires this information to decide how much of a risk there is that the person will get sick the future

Victimisation It is against the law to victimise (treat someone unfairly) because they have said that they might make a complaint of discrimination or because they have made a complaint of discrimination

When is it lawful to discriminate? Generally, discriminating against a person because they have hepatitis C is against the law in many areas of public life BUT, there are exceptions to the rule Some are particularly relevant to hepatitis C related discrimination

Public health exception It is lawful to discriminate against a person with hepatitis C if it is necessary to protect public health Example - excluding people with hepatitis C from donating blood is necessary to protect the blood supply But it is rarely necessary to discriminate in order to protect public health

Case study: facts David works in a childcare centre His boss Lauren recently gave him an excellent performance review But two weeks later, Lauren found out David had hepatitis C David was sacked from his job The childcare centre management say that it was necessary to discriminate against David in order to protect health and safety of the children

Case study: conclusions Such an argument would be unlikely to succeed The best way to protect the public health is to make sure that standard infection control practices are always followed This ensures health and safety of workers and the public

Insurance exception It is lawful for an insurer to discriminate against a person with hepatitis C if: the discrimination is based on relevant research (known as actuarial and statistical data) or where such relevant data is not available, the discrimination is reasonable in the circumstances

Insurance exception: rationale Insurance is commercial activity Insurers are entitled to determine how risky it is to insure the person Insurers must assess whether the person is more likely to make a claim based on research and medical evidence Usually it will be against the law to have a policy of refusing everyone with hepatitis C

Drug dependence exception It is lawful to discriminate against a person on the basis that they are addicted to an illegal drug Only applies to discrimination in employment Only under the ADA (NSW)

Drug dependence exception To reply on this exception the employer would need to show the person was actually addicted, not just using drugs No equivalent exception exists in the DDA Therefore, under the DDA it may be unlawful to discriminate against a person based on their actual, past or assumed drug dependence

Education exception Under the ADA, private schools are not covered They are covered by the DDA So if a person in NSW wants to make a complain about a private school, they should go to HREOC

Is this against the law? quiz Is it unlawful conduct: direct or indirect discrimination harassment victimisation requesting information to discriminate Is it because of the person's hepatitis C or assumed hepatitis C? Is it in public life – covered by an area such as employment, goods & services, clubs etc?

Problem solving Options for action Case study discussion

Why complain? Improves self esteem Can result in changing attitudes Can lead to changes in the practices and policies that can benefit other service users

Making a complaint Get information and advice before making a complaint People need to decide what option is best in their situation e.g anti-discrimination, privacy, health care complaints, unfair dismissal If a person decides to make an anti-discrimination, it’s important to get advice about whether to make their complaint under the ADA (NSW) or the DDA (federal) laws

Differences between ADA & DDA The ADA covers disability and other forms of discrimination including sex, race, homosexuality etc The DDA only covers disability discrimination There are also differences in: areas of public life covered the exceptions time limits delays in complaints handling cost of going to court

Must use the DDA Legal advice is also important because there are some types of complaints which must be made under the DDA Example: commonwealth employees life and disability insurance

Getting legal advice Disability Discrimination Legal Centre Legal Aid Commission Law Access

Thinking about making a complaint Talk to ADB or HREOC before complaining telephone enquiries services 9 – 5 weekdays

How to make a complaint A complaint must be in writing Can use standard form provided by ADB & HREOC

Time limits Complaints to the ADB under the ADA = 6 months Complaints to HREOC under the DDA = 12 months

Lodging a complaint ADB and HREOC accept complaints by post HREOC will also accept complaints by email

Who is who in the process? Complainant = the person making the complaint Respondent = person or organisation against whom the complaint is made Conciliation officer = the person handling the complaint

Assessment ADB or HREOC will look at whether the complaint is covered by anti-discrimination laws they administer If a complaint is made outside the time limit, they’ll consider whether the person has provided good reasons for the delay May ask for more information

Assessment Decide whether to accept complaint or terminate the complaint If the complaint is accepted, the ADB or HREOC will investigate the complaint

Investigation Complaint will be provided to respondent and they will get an opportunity to respond Reply to complainant and they will get an opportunity to opportunity to respond Most complaints will referred to conciliation

What is conciliation? a ‘round table’ structured discussion between complainant and respondent lead by an independent conciliator

About conciliation Conciliation conference are compulsory Anything said in conciliation is confidential Need to seek permission to bring a lawyer or support person Most complaints are resolved without going to court

What is the purpose of conciliation? Allow both parties to tell their side of the story Assists the parties to discuss options Assist parties to reach agreement on how best to resolve the complaint

Tips on preparing for conciliation It’s a good idea for complainants to prepare: a summary of what they want to say a list of the the issues they think the respondent will raise an outline of what they want to say in response get legal advice to help them decide what they might seek to settle your complaint

Resolving a complaint Resolutions can include: an apology getting job back a reference

Resolving a complaint Resolutions can include: access to a service changing a discriminatory practice or policy anti-discrimination training for staff of a service or in a workplace financial compensation

If the complaint isn’t resolved? Complainant will need to decide whether they want to take their complaint to court