“ How healthy is your organisation? A legal service for Not-for-Profit organisations” Discrimination Law

1. “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 QPILCH – Discrimination Law

2. Discrimination Law Belinda Morandini Lawyer June 2008 204513265

3. 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

4. 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

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

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

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

8. 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

9. 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

10. 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

11. 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

12. Common Scenarios in Employment QPILCH – Discrimination Law

13. 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

14. 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

15. 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

16. 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

17. 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

18. 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

19. 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

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

21. 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

22. Sexual Harassment QPILCH – Discrimination Law

23. 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

24. 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 email message or computer screen savers • Includes any gesture, action or comment of a sexual nature in a person's presence QPILCH – Discrimination Law

25. 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

26. 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

27. 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

28. 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

29. Useful Resources • Anti-Discrimination Commission, Queensland - www.adcq.qld.gov.au • HREOC - www.hreoc.gov.au • Criminal records – http://www.hreoc.gov.au/human_rights/criminalrecord/on_the_record/download/otr_guidelines-01.pdf QPILCH – Discrimination Law

30. The End QPILCH – Discrimination Law