Discrimination generally means
doing something in favour of, or against a person. This involves
making a distinction between one person and another and treating
him or her differently. Anti-discrimination law adopts a formulation
of discrimination as being, not only different treatment, but also
less favourable treatment.
Less favourable treatment indicates a sense
of comparison between two people where one person is treated
less favourably than another person. Discrimination is seen
as being against one person,[5]
namely the one who has been treated in an unfair or unequal manner.
In many situations this less favourable treatment will be unlawful
under anti-discrimination law.
Discrimination can be direct or indirect.
Direct discrimination requires a comparison to be made between the
treatment of the person discriminated against and a different real
or hypothetical person.[6]
Indirect discrimination involves treatment which appears to be neutral
or fair but which has the effect of disadvantaging a particular
group.
Direct discrimination tends to focus on a
disadvantage suffered by one person, the notion of indirect discrimination
centres more on group based disadvantage.[7]
However, this does not mean that direct discrimination happens only
to individuals or that indirect discrimination happens only to groups.[8]
The making of a comparison between two groups
involves an assumption that two groups or sorts of people can be
compared and that they should be treated equally.[9]
This is not always possible as there are occasions when such a comparison
is unhelpful or inappropriate, such as trying to compare pregnant
women to men.
The Equal Opportunity Act 1995
It is discrimination as defined under the
Equal Opportunity Act 1995 (“EOA”) that is
unlawful. However, the Act also provides that there are some situations
when an act of discrimination will not be unlawful. This means that
there is an excuse for the discrimination. Section 7 of the Act
defines discrimination to mean direct or indirect discrimination
on the basis of an attribute. It is the attributes (or personal
characteristics) of a person that form the basis for anti-discrimination
law.
Under the EOA, discrimination on the basis
of an attribute generally includes discrimination on the basis—
-
that a person has that attribute or had
it at any time;
-
of a characteristic that a person with
that attribute generally has;
-
of a characteristic that is generally
imputed to a person with that attribute;
-
that a person is presumed to have that
attribute or to have had it at any time.
| For example, as
discrimination on the ground of a presumed or imputed HIV/AIDS
status is unlawful, a person who is a member of one of the
perceived “high risk” groups, such as a gay man,
can rely on this provision if discrimination occurs as a result
of an assumption that he is HIV positive or has an AIDS related
condition.[10] |
The attributes which are protected under the
EOA are—
(a) age;
(ab) breastfeeding;
(ac) gender identity;
(b) impairment;
(c) industrial activity;
(d) lawful sexual activity;
(e) marital status;
(ea) parental status or status as a carer;
(f) physical features;
(g) political belief or activity;
(h) pregnancy;
(i) race;
(j) religious belief or activity;
(k) sex;
(l) sexual orientation;
(m) personal association (whether as a
relative or otherwise) with a person who is identified by reference
to any of the above attributes.
Direct Discrimination
Section 8 of the EOA states—
(1) Direct discrimination occurs if a person
treats, or proposes to treat, someone with an attribute less favourably
than the person treats or would treat someone without that attribute,
or with a different attribute, in the same or similar circumstances.
(2) In determining whether a person directly
discriminates it is irrelevant—
(a) whether or not that person is aware
of the discrimination or considers the treatment less favourable;
(b) whether or not the attribute is the
only or dominant reason for the treatment, as long as it is
a substantial reason.
The ambit of the section extends to discrimination
which has occurred as well as that which may not yet have occurred.
(1) The requirement of less favourable treatment
The test for direct discrimination is that
the person is treated “less favourably”, for example
because of his or her sex, race or disability. Different treatment
is not enough, some sense of comparability is required.[11]
Discriminating between people involves a genuine distinction made
according to relevant and permissible considerations, whereas discrimination
against a person involves treatment which is based on irrelevant
or impermissible considerations.[12]
| An example of discriminating
between people is where Sam and Lin compete for the same job
and Lin gets the job because of previous experience in the
field. But in a different situation, Sam and Lin compete for
the job and Lin doesn’t get it because s/he is too short,
which would be discriminatory. |
Anti-discrimination law protects only the
latter.
The decision of the Victorian Equal Opportunity
Board in Wardley v Ansett Transport Industries (Operations)
Pty Ltd[13]
illustrates the requirement that the treatment be less favourable.
| In that case, a
woman was refused appointment as a trainee pilot by Ansett
because she was of child-bearing age. The evidence showed
that she would have been appointed if she had been male. The
Board rejected the submission that Ms Wardley should not be
compared to a male applicant because she was in a materially
different situation, being that she was about to be married,
may become pregnant and pregnancy would render her unable
to hold a licence. The Board held that Ansett had directly
discriminated against her on the basis of sex. |
(2) The requirement of ‘on the basis
of’
The further test is that the less favourable
treatment is on the basis of the person’s particular attribute.
In Oyekanmi v National Forge Operations Pty Ltd,[14]
the Victorian Equal Opportunity Board stated that “it is clear
that ‘on the ground of’[15]
indicates a connection between the treatment and the race or colour”.
But what kind of connection? There must be an identifiable causal
link between the ground of discrimination and the decision or action
complained about.[16]
A number of High Court judges have indicated
that the attribute in the Act must be the “true basis”
of the less favourable treatment.[17]
(a) The meaning of awareness/consciousness
Under the EOA it does not matter whether
or not a person intended to discriminate against another person.[18]
(b) The meaning of substantial reason
The attribute must be a substantial reason
for the treatment.[19]
This means a reason that is of more than a little significance.[20]
Indirect Discrimination
Direct discrimination operates from the principle
that all people in the same situations should be treated the same.
The concept of indirect discrimination is that people who are not
alike should not be treated the same. Indirect discrimination attempts
to address structural discrimination by acknowledging that treating
people as if they were the same when they actually differ in significant
ways is just as discriminatory as penalising them directly for their
difference.[21]
Section 9 of the EOA provides that indirect
discrimination means imposing a requirement, condition or practice
that—
-
a person with an attribute is unable
to comply with; and
-
a higher proportion of people without
that attribute, or with a different attribute, do or can comply
with; and
-
it is not reasonable in the circumstances.
This means that indirect discrimination occurs
when a requirement, condition or practice, which on its face appears
to be neutral, in effect has a disproportionate impact on a particular
group of people who are protected under the Act. Such a requirement
may be “fair in form and intention but discriminatory in impact
and outcome”.[22]
(1) The meaning of requirement, condition
or practice
Broadly, the words “requirement, condition
or practice” include any policies, rules or practices which
may appear neutral, but have a discriminatory effect in practice.
The requirement need not be explicit nor
specific but the effect of it must be clear.[23]
| In Waters &
Ors v Public Transport Corporation, the High Court found
that the removal of conductors from trams indirectly discriminated
against people with disabilities. The court found that requiring
people to use trams without conductors was an unreasonable
requirement condition or practice of using the service (and
one that the complainants were unable to comply with). The
requirement that trams be used without conductors provided
a barrier to people with disabilities accessing tram services.[24]
|
(2) The meaning of differences
Indirect discrimination operates from the
assumption and acceptance of differences between groups of people
with different attributes. The way in which differences between
people affect their ability and capacity to meet the requisite standards
imposed is broad ranging.
Persons of various attributes may not meet
the physical or functional requirement, for example, average height
or weight.
| For example, a
specific height/weight requirement may indirectly discriminate
against women and persons of Asian origin because a significant
proportion may be below what is required.[25] |
The cultural and religious traditions of
persons may also subject them to indirect discrimination, for example
in observing religious holidays or times of prayer during ‘working
hours’. Another example is in working patterns.
| In Australian
Iron & Steel Pty Ltd v Banovic[26]a
retrenchment policy of “last on-first off” had
the effect of adversely affecting women because the company
had only begun to employ women after many years of only employing
men in the iron and steel industry. Therefore, the last-on
first-off policy for retrenching workers adopted by the company
discriminated against women. |
(3) The meaning of compliance
The meaning of the term “does not or
cannot comply with” has been interpreted broadly with the
effect that compliance is considered as a matter of practicality[27]
and not given a literal interpretation.
| In Byham v
Preston City Council[28]
the complainant who had a mobility disability was considered
unable to comply with the requirement that in order to attend
council meetings he must be able to climb the stairs to the
first floor, although he could in fact climb the stairs if
assisted by a staff member or a family relative. |
(4) The higher proportion requirement
As was noted with respect to the test of
“less favourable treatment” in direct discrimination,
anti-discrimination law generally requires a comparison to be made
in order to determine whether indirect discrimination exists.
This requires a comparison between persons
with the attribute and persons without the attribute, and a finding
that a “higher proportion” of people with the protected
attribute cannot meet the requirement.
In the Banovic retrenchment policy
“last on-first off” case, the High Court said that the
relevant proportions for comparison were the number of men who could
comply as a proportion of all relevant men and the number of women
who could comply as a proportion of all relevant women.[29]
| In the case of
Finance Sector Union v Commonwealth Bank of Australia,[30]
a broad calculation revealed that 98% of men and 91% of women
were able to comply with a requirement that new positions
be taken up within 4 weeks of the Bank’s restructure.
This difference was held to be a substantially higher proportion.[31]
|
(5) The meaning of reasonableness
Unlike direct discrimination, the formulation
of indirect discrimination includes a component of reasonableness.
The EOA provides the factors that need to
be taken into account in assessing reasonableness. These include—
-
the consequences of failing to comply
with the requirement, condition or practice;
-
the cost of alternative requirements,
conditions or practices;
-
the financial circumstances of the person
imposing, or proposing to impose, the requirement, condition
or practice.[32]
Reasonableness must be assessed against the
objectives of the EOA and the circumstances of the particular case.[33]
A requirement, standard or condition which is merely for business
convenience or because things have always been done in a particular
way, may not be considered reasonable.
There should be a demonstrated nexus between
the requirement or condition and the activity to be performed, so
that it can be shown that the requirement is appropriate and adapted
to the particular activity and not merely arbitrary.[34]
Further, it needs to be determined whether an alternative requirement
or condition could have avoided or lessened the disadvantage suffered
by the complainant.
| In Cocks v
State of Queensland,[35]
the requirement that patrons with mobility impairments enter
the newly constructed Brisbane Convention and Exhibition Centre
through a side entrance was held to be indirect discrimination.
In that case, the detriment to the respondent was cost and
the aesthetic effect of the installation of a lift. The benefit
to those with an impairment was that they would feel welcomed
into a major public building thereby enhancing their rightful
acceptance as members of the community with equal dignity.
This would be in furtherance of the objects of the Act. It
was estimated that this would affect about 10% of the population
of Queensland.[36] |
|