Discrimination and human rights

The Equal Opportunity Act is Victoria’s anti- discrimination legislation. The objectives of the Equal Opportunity Act (s 3) are:

• to eliminate discrimination, sexual harassment and victimisation to the greatest extent possible;
• to further promote and protect the right to equality in the Human Rights Charter;
• to encourage the identification and elimination of systemic causes of discrimination, sexual harassment and victimisation;
• to promote and facilitate the progressive realisation of equality as far as reasonably possible by recognising that: – discrimination can cause social and economic disadvantage and that access to opportunities is not equitably distributed throughout society, – treating everyone the same can lead to unequal outcomes, and – achieving substantive equality may require making reasonable adjustments and accommodations or taking special measures;
• to enable the VEOHRC to encourage best practice and facilitate compliance with the Equal Opportunity Act, through education, research and enforcement;
• to enable the VEOHRC to resolve disputes about discrimination, sexual harassment and victimisation in a timely manner, and to provide direct access to VCAT for the resolution of such disputes. The Racial and Religious Tolerance Act also provides remedies for racial and religious vilification. Complaints about vilification can also be brought to the VEOHRC or to VCAT. It is possible to bring a dispute about racial or religious vilification under the Racial and Religious Tolerance Act and racial or religious discrimination under the Equal Opportunity Act to the VEOHRC simultaneously. Complaints of serious racial or religious vilification can also be made to Victoria Police. The objectives of the Racial and Religious Tolerance Act (s 4) are:
• to promote the full and equal participation of every person in a society that values freedom of expression and is an open and multicultural democracy;
• to maintain the right of all Victorians to engage in robust discussion of any matter of public interest; or to engage in, or comment on, any form of artistic expression, discussion of religious issues or academic debate where such discussion, expression, debate or comment does not vilify or marginalise any person or class of people;
• to promote dispute resolution and resolve tensions between people who (as a result of their ignorance of the attributes of others and the effect that their conduct may have on others) vilify others on the grounds of race or religious belief or activity and those who are vilified.

The Equal Opportunity Act (s 6) protects people from discrimination on the basis of the following attributes:

• sex;
• gender identity;
• sexual orientation;
• lawful sexual activity;
• pregnancy;
• breastfeeding;
• marital status (married, same-sex or heterosexual domestic partnership, single, separated, divorced or widowed);
• race (colour, nationality, ethnic or national origin, descent or ancestry);
• disability or presumed disability (including physical, intellectual or psychological disabilities, diseases, illnesses and injuries, genetic predisposition towards a disability, and manifestations of a disability);
• age;
• industrial activity (being or not being a member, joining or not joining an industrial organisation or association, such as a union);
• physical features (a person’s height, size, weight or other bodily characteristics, but does not include make-up and clothing);
• religious belief or activity (e.g. holding or not holding a religious belief);
• political belief or activity (e.g. holding or not holding a political belief);
• parental status, or status as a carer (where another person is wholly or substantially dependent on a person for ongoing care and attention, but not on a commercial basis);
• employment activity (either making a reasonable request to your employer or principal or host agency for information about your entitlements or expressing concern that some employment entitlements have not/will not be received);
• expunged homosexual conviction (as defined in Part 8 of the Sentencing Act 1991 (Vic));
• profession, trade or occupation;
• sex characteristics;
• a spent conviction;
• personal association (whether as a relative or otherwise) with a person who has any of the above attributes. Discrimination on the basis of an attribute includes discrimination on the basis:
• that a person has the attribute or had it in the past (e.g. a person is denied a full-time position because they had a back injury that has now healed);
• of a characteristic* that a person with that attribute generally has or is generally imputed to a person with that attribute (e.g. a person is denied a promotion on the basis that she has recently become pregnant, and it is assumed that female employees who have a family cannot take on more demanding work); or
• that a person is presumed to have an attribute or to have had it at any time. In the recent case of Austin Health v Tsikos [2023] VSCA 82, the Court of Appeal confirmed that unconscious bias can amount to direct discrimination under the Equal Opportunity Act. * A ‘characteristic’ includes forms of assistance that a person with disability uses or needs to alleviate the effects of the disability. Examples include equipment (e.g. a therapeutic device), the assistance of a carer or interpreter, or an assistance dog (i.e. one trained to perform tasks or functions that assist a person with disability to alleviate the effects of their disability). Discrimination can be direct or indirect (see Direct and indirect discrimination’, below), or a breach of one of the stand-alone duties in the Equal Opportunity Act (s 7). The stand-alone duties in the Equal Oppor­ tunity Act (s 7) are:
• An employer or firm – in organising working arrangements – must not unreasonably refuse to accommodate the responsibilities that a person has as a parent or carer (including for a person offered employment or partnership).
• An employer, principal, firm, service provider or educational authority must make reasonable adjustments that are required for a person with a disability, except: – where the employer, firm, service provider or educational authority complies with the disability standards under the Disability Discrimination Act 1992 (Cth) or a determination made under section 160B of the Building Act 1993 (Vic); or – in the case of employment and firms, where the person cannot adequately perform the genuine and reasonable requirements of employment even after adjustments are made; or – in the case of an educational authority or service provider, where the person could not participate in, or continue to participate in, or derive any substantial benefit from the educational program or service even after the adjustments are made. The Equal Opportunity Act provides guidance about assessing what is ‘reasonable’ having regard to all the facts and circumstances. Factors to consider include the person’s circumstances and the nature of their disability, the nature of the adjustments required, the financial circumstances of the person making the adjustment, and the consequences for both the person seeking the adjustment and the person making the adjustment.
• An accommodation provider cannot refuse to pro­ vide accommodation to a person with disability because that person has an assistance dog.
• A landlord must allow a person with disability to make reasonable alterations to the accommodation to meet their special needs, provided certain conditions are met (including that the tenant pays for the alterations, they do not require alterations to other people’s property, they agree to restore the accommodation to its previous condition when leaving, and that it is reasonably practicable to do so).
• An owners corporation must allow a person with disability to make reasonable alterations to common property to meet their special needs, provided a number of conditions are met (including that they pay for the alterations themselves, they do not require alterations to other people’s lots, the alterations do not adversely affect other people’s interests, and they agree to restore the common property to its previous condition before vacating their lot). Owners corporations also provide services (e.g. in the common property) under the Equal Opportunity Act and are therefore obliged to make reasonable adjustments for people with a disability (s 45). Note that breaching these stand-alone duties amounts to discrimination without needing to prove direct or indirect discrimination. A person’s motive for engaging in discriminatory conduct under the Equal Opportunity Act is irrelevant (s 10). Similarly, in determining whether or not a person has directly or indirectly discriminated against someone, it is irrelevant whether they are aware of the discrimination (ss 8(2), 9(4)). Discrimination can occur by a person acting alone or with others, or by doing an act, or failing to do something (s 11).

  Direct and indirect discrimination

  Direct discrimination (s 8) Direct discrimination occurs when a person with a particular attribute is treated (or proposed to be treated) unfavourably because of that attribute. The focus of the test for direct discrimination is on the reasons for the treatment. For example, a person is informed that even though they were the best applicant for a job, they have been unsuccessful because they are too young. It doesn’t matter if there is more than one reason for the treatment, as long as the attribute is a substantial reason. Indirect discrimination (s 9) Indirect discrimination occurs when an unreasonable requirement, condition or practice is imposed in a particular situation (e.g. applying for a job) and appears to treat people the same, but has, or is likely to have, the effect of disadvantaging people with an attribute. To establish whether a person has experienced indirect discrimination, consider three factors: 1 whether there is a requirement, condition or practice; 2 whether the requirement, condition or practice has the effect of disadvantaging a person with a protected attribute; and 3 whether the requirement, condition or practice is reasonable. Whether a requirement, condition or practice is reasonable depends on all the relevant circumstances. It is the obligation of those seeking to impose the requirement, condition or practice to prove its reasonableness. Relevant circumstances to consider when determining reasonableness include (s 9(3)):*
• the nature and extent of the disadvantage;
• whether the disadvantage is proportionate to the result sought;
• the cost of alternatives;
• the financial circumstances of the person imposing or proposing to impose the requirement, condition or practice; and
• whether reasonable adjustments can be made to lessen the disadvantage. * This is not an exhaustive list; there may be other relevant factors.

  Positive duty

  Duty holders – including employers, educational authorities, and providers of goods and services – should be aware that under the Equal Opportunity Act (s 15), they have a positive duty to take reasonable and proportionate measures to eliminate discrimination, sexual harassment and victimisation as far as possible. The VEOHRC can use its enforcement powers to assess compliance with the positive duty (discussed below).

Not all acts of discrimination are unlawful under the Equal Opportunity Act. Unlawful acts of discrimination are only those that occur in certain areas of public life on the basis of a protected attribute. Unlawful discrimination is prohibited in these areas:

• employment and contract work;
• employment-related areas (e.g. partnership or contract work);
• education;
• provision of goods and services;
• accommodation;
• clubs and club membership;
• sports;
• disposal of land and access to public premises;
• local government. Within these areas of public life, there are specific types of conduct that are covered; these are outlined below.

  Employment

  Discrimination in employment (ss 16, 18 Equal Opportunity Act) covers discrimination:
• in hiring and terminating a person’s employment;
• in the terms and con­ditions of employment;
• by denying or limiting access to opportunities for promotion, transfer, training or other benefits of employment;
• by denying an employee access to occupational training, guidance or apprenticeship programs;
• by subjecting an employee to any other detriment. Volunteers and unpaid workers Volunteers and unpaid workers are specifically excluded from the definition of ‘employee’ in the Equal Opportunity Act (except for the purposes of sexual harassment). However, volunteers may both receive and provide services within the meaning of the Equal Opportunity Act and may be covered by the Equal Opportunity Act’s service provisions.

  Contract work

  Discrimination in contract work (s 21 Equal Opportunity Act) covers discrimination in the terms on which a principal allows a contract worker to work. It also makes it clear that principals must make reasonable adjustments for contract workers with disability (see s 22A). Discrimination in contract work includes:
• not allowing a contract worker to work or continue to work;
• denying or limiting a contract worker’s access to benefits connected with their work;
• subjecting a contract worker to any other detriment.

  Employment-related areas

  Discrimination in employment-related areas cover discrimination in firms or partnerships, industrial organisations, and qualifying bodies. Discrimination by these organisations includes:
• For firms comprising five or more partners (s 30): Discrimination may occur in relation to deciding who should become a partner; in the terms on which a person is invited to become a partner; by denying or limiting access by the partner to benefits arising from partnership; or by expelling the partner. For firms of fewer than five partners, discrimination is prohibited in these areas only if the conduct is unreasonable.
• For industrial organisations (s 35): Discrimination may occur in relation to deciding who can join the organisation; refusing or failing to accept a person’s membership application; in the membership terms or their variation; in denying or limiting access to benefits arising from membership; by depriving a person of membership; or by subjecting a member to any other detriment. An industrial organisation includes any registered or formally recognised employee or employer organisation (e.g. a union), or other organisation established for the purposes of people who carry on a particular industry, trade, profession, business or employment.
• For qualifying bodies (s 36): Discrimination may occur in refusing or failing to confer, renew or extend occupational qualifications; in the terms that occupational qualifications are conferred, renewed or extended or variation of these terms; in revoking or withdrawing occupational qualifications; or by subjecting the person to any other detriment.

  Educational authorities

  Discrimination in relation to educational authorities (s 38) covers the conduct of schools, colleges, universities and other educational institutions in deciding who should be admitted as a student; in refusing or failing to accept a person’s admission as a student; in the terms on which a student is admitted; in denying or limiting access to benefits provided by the authority to the student; by expelling the student; or subjecting them to any other detriment.

  Goods and services

  Discrimination in goods and services (s 44) includes banking services (e.g. the provision of loans or finance, financial accommodations, credit guarantees and insurance); entertainment, recreation or refreshment; transport and travel; the services of a profession or trade; access to and use of public places; and the services of a public authority, council, state-owned enterprise or government department. In relation to the provision of these goods and services, discrimination may occur by refusing to provide goods and services; in the terms on which the goods and services are provided; or by subjecting a person to any other detriment in connection with the provision of goods and services to them.

  Disposal of land

  Discrimination in relation to the disposal of land (s 50) (e.g. selling land) covers refusing to dispose of land to another person, or discrimination in the terms on which land is offered to another person.

  Accommodation

  Discrimination in accommodation (ss 52, 53) relates to renting flats, houses, units, motels, hotels, boarding houses, hostels, caravans, caravan sites, business accomm­ odation and camping sites. In relation to accommodation, discrimination may occur by refusing or failing to accept a person’s application for accommodation; in the way their application is processed; in the terms on which accommodation is provided or the variation of those terms; by denying the person (or limiting their access to) any benefit associated with the accommodation; by evicting the person; by refusing to extend or renew the provision of accommodation or the terms of the extension or renewal; or by subjecting the person to any other detriment in connection with the provision of accommodation.

  Access to public premises

  Discrimination in access to public premises (s 57) covers discriminating specifically against people with disability by refusing to allow a person to access or use a premises or its facilities; in the terms and conditions of use or access to a premises or its facilities; in relation to the provision of means of access; or by requiring someone to leave a premises or stop using facilities. This relates to premises that the public (or a section of the public) may enter and use, whether or not for payment. It includes buildings, vehicles, aircraft and vessels.

  Clubs and club membership

  The Equal Opportunity Act defines a club as an association of more than 30 people brought together for a social, literary, cultural, political, sporting, athletic or other lawful purpose that has an ongoing licence to supply alcohol and operates its facilities wholly or partly from its own funds. Discrimination in relation to clubs and club members (ss 64, 65) covers applicants for membership, or discrimination against current members: in determining the terms of a particular category or type of membership; in arrangements made for deciding who should be offered membership; by refusing or failing to accept a person’s application for membership or an existing member’s application for a different type or category or membership; in the way that membership applications are processed; in the terms on which a person is admitted as a member or variation of those terms; by denying or limiting access to any benefit provided by the club; by depriving a person of membership; or subjecting a member to any other detriment.

  Sport

  Sport (s 70) covers participating in sport, as well as coaching, umpiring, refereeing or assisting with the administration of a sport. Discrimination in this area includes refusing or failing to select a person for a sporting team or excluding a person from participating or competing in a sporting activity.

  Local government

  Local government (s 73) covers discrimination by a councillor (in performing their public functions) against another councillor of the same council, or member of a council committee.

  Liability of employers

  Employers and principals are vicariously liable for the discriminatory conduct of their employees or agents (s 109), unless they can demonstrate that they took reasonable precautions to prevent the conduct from occurring (s 110). This means an employer or principal is taken to have done any discriminatory act that their employees or agents have done and is responsible for any remedy (e.g. payment of compensation). Therefore, a person can bring a complaint against their employer or the person who did the relevant act, or both.

  Exceptions

  There are a number of exceptions to the conduct covered above, some of which are outlined below (see ‘Exceptions in the Equal Opportunity Act’, below). It is important to check whether there is an exception that applies to your situation as these mean that the conduct, while being discriminatory, is not unlawful.

Sexual harassment is an unwelcome sexual advance, an unwelcome request for sexual favours, or any other unwelcome conduct of a sexual nature, in circumstances in which a reasonable person would have anticipated that the other person would be offended, humiliated or intimidated (s 92). Sexual harassment can be a range of different actions; for example, jokes, unwanted touching or kissing, using sexually explicit computer screen savers or posters, requests for sexual favours, and sending emails or SMS messages with sexual content.

The Equal Opportunity Act prohibits sexual harassment in employment, clubs and local government, and in the provision of goods and services and accommodation. The Equal Opportunity Act also prohibits sexual harassment in relation to industrial organisations, qualifying bodies, partnerships and educational institutions.

Volunteers and unpaid workers are covered by sexual harassment laws because, for the purposes of the prohibition of sexual harassment, the definition of ‘employee’ includes volunteers and unpaid workers.

Sexual harassment in employment includes harassment by employees towards each other (i.e. between co-workers or colleagues), by the employer towards an employee, or by the employee towards their employer. It also includes sexual harassment by or of job applicants, volunteers, and between people in common workplaces. A ‘common workplace’ is any place that a person attends for the purposes of carrying out any function(s) in relation to their employment, occupation, business, trade or profession. A common workplace need not be the person’s principal place of business or employment. It is not necessary for both parties to be employed by the same employer, provided the harassment occurs in a place that is a workplace of both of them.

As with discrimination, employers are vicariously liable for sexual harassment conducted by any employees or agents unless they can demonstrate that they took reasonable precautions to prevent the sexual harassment from occurring (ss 109–110).

Under the Equal Opportunity Act (s 15), all duty holders, including employers, have a positive duty to take all reasonable steps to prevent sexual harassment at work. The positive duty applies to employers of all sizes and covers all types of workers, including full-time, part-time and casual employees, agents and contract workers, trainees and apprentices, and volunteers and unpaid workers.

For further information about positive duty, see ‘Positive duty’, below.

The VEOHRC provides a guideline that outlines six minimum standards that employers must meet to comply with their positive duty to eliminate sexual harassment. This guideline may be considered in judicial proceedings when deciding whether employers have complied with the law.

The VEOHRC has also created an interactive online sexual harassment support and response tool, and a quick guide for employers about their obligations under the law. These resources are available on the VEOHRC’s website (www. humanrights.vic.gov.au).

Victimisation Under the Equal Opportunity Act (s 103), victimisation is unlawful. Victimisation means subjecting a person to (or threatening to subject a person to) any detriment because the person (or someone the person is associated with) has done anything, or is believed to intend to do something, in accordance with the Equal Opportunity Act (s 104).

Victimisation includes:

• making a complaint or allegation that there has been a breach of the Equal Opportunity Act;
• bringing a dispute to the VEOHRC or bringing proceedings under the Equal Opportunity Act;
• giving evidence or information, or providing any document, in relation to a dispute or in connection with an Equal Opportunity Act proceeding or investigation;
• attending a compulsory VCAT conference or mediation;
• refusing to engage in discriminatory conduct or to sexually harass someone;
• alleging that someone else has contravened the Equal Opportunity Act. Where a person is claiming they have been victimised because they have made a complaint of discrimination or sexual harassment, they do not need to specifically state that a provision of the Equal Opportunity Act has been breached. They can simply allege that the conduct that would constitute a breach has occurred. For example, making a complaint of victimisation in employment does not need to also include a complaint that section 93 of the Equal Opportunity Act has been breached. It is not necessary to prove that discrimination or sexual harassment has occurred in order to bring a complaint of victimisation.

  Authorising or assisting discrimination

  A person must not request, instruct, induce, encourage, authorise or assist another to contravene the Equal Opportunity Act (s 105). If a person acts in any of these ways, a dispute can be brought to the VEOHRC, or an application can be made to VCAT against that person. If the other person (who has been requested, instructed, encouraged, authorised or assisted) proceeds to contravene the Equal Opportunity Act, a dispute can be lodged against both people with either the VEOHRC or VCAT (s 106).

  Discriminatory request for information

  The Equal Opportunity Act (s 107) prohibits a person asking for informat­ion that could potentially be used to discriminate against another person. An exception may apply if the information sought is reasonably requested or required for a non­-discriminatory purpose (s 108). For example, employers should not ask questions about a job applicant’s religion or parental or carer responsibilities in interviews, unless they have a genuine non-discriminatory reason for doing so. A person who believes that they have been asked for information that could be used to discriminate against them can bring a dispute to the VEOHRC. The matter would be dealt with in the same way as a dispute about discrimination.

  Advertisements

  It is an offence under the Equal Opportunity Act (s 182) to publish or display, or authorise the publication or display of, an advertisement or notice that indicates an intention to discriminate unlawfully. For example, it is likely to be unlawful to indicate in a job advertisement that applicants should be 30 years old.

  Positive duty

  As noted above, the Equal Opportunity Act creates a positive duty, which obliges duty holders under the Equal Opportunity Act to take reasonable and proportionate measures to eliminate discrimination, sexual harassment and victimisation as far as possible. The reference to ‘reasonable and proportionate measures’ and the qualifying words ‘as far as possible’ aim to ensure that the level of compliance required is appropriate and proportionate to the size and operations of the duty holder, taking into account:
• the size of the duty holder’s business or operations;
• the resources and service priorities of the duty holder;
• the nature and circumstances of the duty holder’s business or operations;
• the practicability and cost of compliance. It is not possible to bring a claim to the VEOHRC or to VCAT for breach of positive duty. However, the VEOHRC may investigate breaches of positive duty as part of investigating systemic discrimination under Part 9 of the Equal Opportunity Act.