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Discrimination

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Discrimination

Both “direct discrimination” and “indirect discrimination” are prohibited in the context of discrimination.

Direct discrimination involves treating a person less favourably because of the prohibited reason while indirect discrimination involves the imposition of a rule or requirement that has different impact on people because of a protected quality. For example, a requirement that employees be more than 6ft tall would indirectly discriminate against women, as men are disproportionately more likely to be more than 6ft tall.

Discrimination can be held to be illegal if it based on a person’s:

  •  Age
  • Disability
  •  Race
  • Sex, pregnancy, marital or relationship status, family responsibilities or breastfeeding
  • Sexual orientation, gender identity, or intersex status. 
 

If you have experienced discrimination that you believe may be unlawful, Segelov Taylor Lawyers can assist to clarify your legal rights and seek a remedy.  Our website below provides specific information in relation to different classes of discrimination.

Areas of Discrimination Law

Disability Discrimination 

Disability discrimination is treating a person less favourably because of a disability.

Disability discrimination is prohibited by the Commonwealth Disability Discrimination Act, as well as anti-discrimination laws in each state. Disability discrimination is also prohibited, in the context of work, under the Fair Work Act.

The areas in which disability discrimination are prohibited are more extensive than in relation to any other of the prohibited reasons. Under the Disability Discrimination Act, the following forms of discrimination are prohibited on the grounds of disability:

  • by an employer – as to who is offered work, in terminating people from employment, or subjecting employees or contractors to some detriment;
  • by an educational institution – as to who is accepted, rejected, expelled or otherwise suffers a detriment;
  • by a person controlling premises – as to who is able to access the premises;
  •  by a person providing goods and services, including accommodation and real estate – as to who the goods and services are provided to, and the terms on which they are provided;
  • by clubs and incorporated associations – as to access to membership or other benefits of the club;
  • in the administration of Commonwealth programs.

 

Inherent requirements, unjustifiable hardship and reasonable accommodations 

Although expressed in slightly different terms, most disability discrimination acts contain three factors that qualify the test of whether conduct is unlawful.

Inherent requirements

In the context of employment discrimination, it is not unlawful to discriminate against a person if they cannot perform the inherent requirements of the job.  The question of what the inherent requirements are requires an examination of the key and central elements of the person’s job.  By way of example, an inherent requirement of a truck driver may be that they be able to hold a licence.  Termination of a person with a disability that prevents them from being able to drive would not be prohibited.

Unjustifiable hardship

It is generally a defence to an allegation of disability discrimination that requiring the person not to discriminate would impose an unjustifiable hardship on them.  The test of what is an unjustifiable hardship will vary by reference to the size of the potential discriminator, and the cost or imposition of any change that they would be required to make to not discriminate.

Racial Discrimination & Vilification 

What is Racial Discrimination?

Racial Discrimination, in broad terms, is the act of treating someone adversely or differently because of their race. There are a number of laws that make it illegal for you to be discriminated against because of your race.

Under federal and state anti-discrimination laws, employers have a responsibility to prevent any form of racial discrimination in the workplace and are required to have structures in place to prevent racial discrimination from taking place. The law covers all types of employers equally, whether you are full-time, part-time, on probation, or a trainee.

What is Racial Vilification?

Racial vilification (in general terms, hate speech related to race) is prohibited by various laws in different states.  While the definition varies between laws, generally speaking, racial vilification is public conduct that may insult, offend or humiliate another on the basis of
their race. Public conduct can include communications that are able to be witnessed by the public, such as in print, on the radio, or on the internet. Racial vilification can also occur on images of pieces of clothing, signs or flags, or else within other information that is shared to the public.

Sexual Discrimination & Harassment 

Sexual harassment is unwelcome conduct of a sexual nature. It does not need to involve repeated acts, although repeated acts often assist in demonstrating that conduct was unwelcome.

The law in relation to sexual harassment is very similar under state and Commonwealth law.  The decisions as to which regime to commence a complaint under is made by reference to:

  • whether there is any other action being contemplated (if there is, a claim under
    Commonwealth law will generally be preferred as it can be brought in the
    Federal Court or Federal Circuit Court)
  • whether the employee is a state public sector employee.  Such employees may
    not be entitled to bring claims under the Commonwealth law.
 

The prohibition against sexual harassment is not limited by gender or sex.  Both men and women can be sexually harassed, by both men and women.  However sexual harassment of women by men remains far and away the most common.

LGBTQIA+ Discrimination 

Individuals who identify as LGBTQIA+ are protected from discrimination by law. According to the Sex Discrimination Act 1984 (Cth), there would be discrimination based on an individual’s sexual orientation where a person is treated less favourably than another person in a similar situation. Each state has also enacted legislation that address discrimination such as Anti-Discrimination Act 1977 (NSW).

Both direct and indirect discrimination is unlawful if they occurred in certain public places including:

  • work
  • education
  • provision of goods and services
  • provision of accommodation
  • registered clubs.

However, there may be situations where certain forms of discrimination may be exempt from the relevant Act’s application.

If you have experienced discrimination that you believe may be unlawful, Segelov Taylor Lawyers can advise you on your legal options. Our principal, David Taylor is an accredited specialist in employment and industrial law an has 20 years’ experience in handling discrimination and harassment matters.

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