Discrimination and Independent Schools in Queensland

OVERVIEW Introduction to the Anti-Discrimination Act 1991 – types of behaviour prohibited by the Act – areas of life where behaviours are prohibted Vicarious Liability Exemptions Outcomes of complaints

Introduction to the Anti- Discrimination Act 1991

The Anti-Discrimination Act 1991 Makes unlawful – Discrimination – direct & indirect (s8,10 &11) Unnecessary Questions (s124) Sexual Harassment (s ) Victimisation (s ) Public Vilification (s124A & s131A) Discriminatory Advertising (s ) and gives a person affected the right to lodge a complaint with the ADCQ.

Discrimination Discrimination must be: 1. on the basis of an attribute; and 2. in an area of activity covered by the Act. Discrimination can be: Direct (section 10); or Indirect (section 11).

The Attributes Sex Pregnancy Breastfeeding Family Responsibilities Parental status Relationship status Sexuality Gender identity Lawful sexual activity – ie. sex workers Age Impairment Race Religious belief or activity Trade union activity Political belief or activity Association with a person identified by an above attribute

The Areas Work – includes when applying for work Education Goods & services – includes access to public places & facilities Accommodation Administration of State laws & programs Superannuation & Insurance Disposal of land, club membership, local government members

Direct Discrimination Elements of direct discrimination (s8 & 10): 1. Attribute & Area 2. Worse treatment than another in same circumstances 3. A causal link between attribute & worse treatment What is direct discrimination? Complainant is targeted because of their attribute Respondent’s motive is not relevant Actions and/or words can be less favourable treatment

Indirect Discrimination Elements of indirect discrimination (s8 & 11): 1. Attribute & Area 2. A term with which the complainant cannot comply 3. A causal link between attribute & inability to comply What is indirect discrimination? Term may not be an express term & is often contained in a policy or “across the board” practice Respondent must show the term is reasonable Respondent may not know the discriminatory impact & may not know the complainant has the attribute

Unnecessary Questions Cannot ask for information on which discrimination might be based Covers oral and written requests Exemptions where authorised by law, court order, order or award of industrial court or tribunal, industrial agreement or order of the Anti-Discrimination Tribunal Defence where respondent proves that the information is reasonably required for a purpose not involving discrimination

Sexual Harassment Protects employees, students and everyone at work, school and everywhere Threshold elements of Sexual Harassment (s ):  Unsolicited physical intimacy; or  Unsolicited demand/request for sexual favours; or  A remark with sexual connotations relating to the complainant; or  Other unwelcome sexual conduct of a sexual nature in relation to the complainant

Sexual Harassment And either  Intended to offend, humiliate or intimidate; or  done in circumstances where a reasonable person would anticipate the possibility of the complainant being offended, humiliated or intimidated  look at sex, age, race and impairment of the complainant, relationship between the two persons and any other circumstances.

Sexual Harassment can include: × Lewd comments, smutty jokes × Questions about private life, talk about your own sex life × Suggestive comments about person or their body × Asking for sex, requests for an intimate relationship × Touching and brushing against someone in a sexual way × Sexual assault × Offensive phone calls, showing a person sexual pictures or s, sexual SMS messages

Victimisation Threshold elements of Victimisation (s ):  Act/threatened act to the detriment of the person complaining of victimisation  Act or threat must be motivated by the victim, their associates or relatives either Refusing to breach the Act; Alleging or intending to allege something which would be a breach of the Act; Being or intending to be involved in proceedings under the Act; or Being believed to be doing or intending to do one of the above

Public Vilification Threshold elements of vilification (s124A & 131A):  Public act  Incitement of others to hatred, serious contempt or severe ridicule (real or potential incitement)  Person or group  On the ground of race, religion, sexuality or gender identity  Under s131A, also need actual threat to or incitement of others to physically harm persons or property  Serious vilification

Vicarious Liability

Vicarious Liability (s133)  Employers are also liable for contraventions of the Act done by their workers or agents in the course of their work  Complaints can be made against either or both Defence: That the employers took reasonable steps to prevent the discrimination or harassment including policies, training and complaint procedures.

‘Reasonable steps’ for employers in preventing discrimination and sexual harassment Reasonable steps may include: Policy Induction and Training Grievance Process EEO Contact Officers Monitoring Compliance with Policy

Relevant Exemptions to Discrimination for independent Schools

Exemptions Some important exemptions include:  Religious Bodies  Work with children  Genuine occupational requirement  Unjustifiable hardship  Single sex, religion or impairment school

Religious Bodies (s109) Act does not apply to: training, education, ordination or appointment of priests, ministers of religion or members of religious orders selection or appointment of persons to perform functions or participate in religious observance acts by religious body in accordance with religious doctrine & necessary to avoid offending religious sensitivities (exemption does not apply in work or education areas)

Work with children (s28) Can discriminate against employee on basis of lawful sexual activity or gender identity if work involves care or instruction of minors AND reasonably necessary to protect minors physically, psychologically or emotionally child sex offence conviction or if disqualified from working with children under law

Genuine occupational requirement (s25 (1)) Can discriminate where imposing a genuine occupational requirement on employee Must be genuine, necessary for and relate to the job; The section is objective in its terms In practice: Ask “Would the position be essentially the same if that requirement was not included?” – If no, then it is a genuine occupational requirement. Then ask “Is the complainant capable of performing that genuine occupational requirement?” – If no, then discrimination against the complainant is excused.

Genuine occupational requirement (s25 (2)) Can discriminate in a reasonable way for work in a religious educational institution if a person- (a) Openly acts in a way that is contrary to the employer’s religious beliefs in a selection process, in the course of work or connected to the person’s work; AND (b) It is a genuine occupational requirement that the person acts consistently with the employer’s religious beliefs (Exemption doesn’t apply to age, race or impairment discrimination)

Unjustifiable hardship (s35 & 44) Can discriminate where: – The employee/student requires special services/facilities; & – The supply of the special services or facilities would impose an unjustifiable hardship on the employer/educational authority Consider (s5) – – Nature of the special services or facilities – Number who would benefit or be disadvantaged – Nature of the benefit or detriment to all concerned – Financial circumstances of the employer/authority – Cost and disruption

School for single sex, religion or impairment (s41) Can discriminate if operate an educational authority wholly or mainly for students of a particular sex or religion or general or specific impairment to exclude- students who are not of the particular sex or religion; or Students who do not have a general or the specific impairment.

Outcomes of Complaints under the Anti-Discrimination Act

The Complaint Resolution Process

Outcomes Compensation – General damages – for hurt, humiliation, injury to feelings, – Special damages –expenses eg. medical and lost wages Interest Apology Implementation of programs to eliminate discrimination Reinstatement/Enrolment Declaration that an agreement is void

How much compensation is awarded in a particular case? I obo BI v State of Qld - $27,000 in general damages - Highest amount for impairment discrimination against a student in education Walsh v St Vincent de Paul Society - $25,000 general damages for religious discrimination in work