QPILCH – Discrimination Law “ How healthy is your organisation? A legal service for Not-for-Profit organisations” Discrimination Law Queensland Public Interest Law Clearing House Incorporated presents Wednesday 4 June 2008 Thanks to our kind sponsor Blake Dawson

Discrimination Law June 2008 Belinda Morandini Lawyer

QPILCH – Discrimination Law Session Outline  What is discrimination?  When does discrimination apply?  What are the common scenarios that arise in the context of employment?  What is sexual harassment?  How does a person make a complaint of discrimination or sexual harassment?  Useful resources

QPILCH – Discrimination Law Anti-Discrimination legislation  Queensland Anti-Discrimination Act 1991 (Qld)  Commonwealth Human Rights & Equal Opportunity Commission Act 1986 (Cth) Racial Discrimination Act 1975 (Cth) Sex Discrimination Act 1984 (Cth) Disability Discrimination Act 1992 (Cth) Age Discrimination Act 2004 (Cth)

QPILCH – Discrimination Law When does it apply?  Protected attribute  Particular places or circumstances  Direct or indirect  Does an exemption apply?

QPILCH – Discrimination Law Protected attributes Age Political belief or political activity Race sex Breastfeeding Relationship status / marital status Religious belief or religious activity Pregnancy and parental status Impairment Trade union activity Lawful sexual activity Sexuality Gender identity Association with or relation to a person identified on the basis of any of these attributes Family responsibilities

QPILCH – Discrimination Law Places where discrimination applies  Discrimination law only applies to certain areas of public life: Education Work Provision of Goods And Services Accommodation

QPILCH – Discrimination Law Direct discrimination  Less favourable treatment  Because of an attribute  Same or similar circumstances  Motive irrelevant  May be more than one reason – but the protected attribute must be the substantial reason

QPILCH – Discrimination Law Indirect discrimination  Requirement, condition or practice applied across the board  Person with an attribute can't or doesn't comply  Higher proportion of people without the attribute can or do comply  Not reasonable in the circumstances

QPILCH – Discrimination Law Exemptions  Genuine Occupational Requirements Example – an actor of a certain age/race/sex Example – security person to do body cavity searches on person of a particular gender  Necessary to protect the health and safety of people at work Example – truck driver with epilepsy

QPILCH – Discrimination Law Exemptions  Unjustifiable Hardship Employer will have to supply the person with the attribute with special services or facilities The cost/benefit of the special services impose an unreasonable burden on the employer  Must be unjustifiable – not just hardship

QPILCH – Discrimination Law Common Scenarios in Employment

QPILCH – Discrimination Law Interviews  Applies to pre-employment conduct  Cannot ask questions upon which discrimination could be based Example – do you have children? Example – are you a member of a union? Example – do you have injuries?

QPILCH – Discrimination Law Can you ask anything?  Yes – but it must be necessary to determine if: The person can meet the genuine occupational requirements of the position If the person poses a workplace health and safety risk

QPILCH – Discrimination Law Tips for Employers  Prepare a detailed analysis of the genuine occupational requirements of the position  Pre-plan the screening method Ensure questions and any assessments are directly connected to the genuine occupational requirements of the job  Pre-plan your questions Is there any reason you cannot perform or may suffer an injury if you perform [name of task]?

QPILCH – Discrimination Law A right to part-time work after maternity leave?  Right to part-time work?  What are "reasonable efforts"? Tleyji v Travel Spirit Group [2005] NSWADT 294 Mayer v ANSTO [2003] FMCA 2009

QPILCH – Discrimination Law Tips for Employers Give full and proper consideration to an employee's request to work part time Can they swap positions with another employee? Are there part-time employees who want to work full-time? Can a job-share arrangement work? Trial the employee's proposal

QPILCH – Discrimination Law Fitness for work  Consider Can the employee carry out the genuine occupational requirements of the position? What reasonable accommodations can be made? Is there an unacceptable risk to the employee's health and safety?

QPILCH – Discrimination Law Tips for Employers Prepare a detailed analysis of the genuine occupational requirements of the position Does it require lifting? How heavy? How frequently? Confined spaces? Obtain specialist medical opinion as to whether the employee can perform these tasks safely Provide the employee with an opportunity to provide own medical evidence and provide alternatives

QPILCH – Discrimination Law Termination of Employment  Anti-Discrimination Legislation  Workplace Relations Act 1996 (Cth)  Industrial Relations Act 1999 (Qld)

QPILCH – Discrimination Law Other examples  Can a person be discriminated against because of homelessness? No – Homelessness is not a protected attribute  Can a person be discriminated against because they have a criminal record? Yes – but in limited circumstances

QPILCH – Discrimination Law Sexual Harassment

QPILCH – Discrimination Law Sexual harassment  Sexual advance or conduct of a sexual nature  Unwelcome conduct  Offends, humiliates or intimidates the other person  Based on a reasonable person's assessment

QPILCH – Discrimination Law Conduct of sexual nature  May be written, verbal or physical  Uninvited physical contact  Telling smutty jokes or making remarks of a like nature  Sexually explicit conversation  Touching or fiddling with a person's clothing  Staring or leering at a person or at parts of their body  Visual communication eg posters, graffiti  Offensive message or computer screen savers  Includes any gesture, action or comment of a sexual nature in a person's presence

QPILCH – Discrimination Law Sexual harassment can be  A single act  A course of conduct  Unwelcome conduct not aimed at someone directly, but part of a work pattern or culture

QPILCH – Discrimination Law Sexual harassment laws …  Do not prohibit friendships or relationships between colleagues  Are not intended to make the workplace a grey and sterile environment  Do apply at work related social events, such as conferences and end of year parties

QPILCH – Discrimination Law Other concepts in discrimination legislation  Victimisation  Treating someone less favourably because they made a complaint or are involved in the complaint (eg witness)  Vicarious liability  Employer liable for employees acts unless can prove employer took reasonable steps to prevent conduct

QPILCH – Discrimination Law Making a discrimination/harassment complaint  Complainant can choose to lodge a complaint under State or Commonwealth laws  Queensland Anti-Discrimination Commission Anti-Discrimination Tribunal Supreme Court Queensland Industrial Relations Commission  Commonwealth Human Rights and Equal Opportunity Commission (HREOC) Federal Court or Federal Magistrates Court High Court Australian Industrial Relations Commission

QPILCH – Discrimination Law Useful Resources  Anti-Discrimination Commission, Queensland -  HREOC -  Criminal records – minalrecord/on_the_record/download/otr_ guidelines-01.pdf

QPILCH – Discrimination Law The End