Discrimination
Acknowledgment
This material has been prepared from information provided by the Victorian Equal Opportunity and Human Rights Commission (formerly the Equal Opportunity Commission) in co-operation with the Human Rights and Equal Opportunity Commission (Commonwealth) and the Disability Discrimination Law Advocacy Service
In the US there are more than 100 jurisdictions, (including 10 states, 86 cities and 13 counties) that ban discrimination based on sexual orientation. For a full list, visit the Human Rights Campaign web site at www.hrc.org, under the topic "issues."
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GayLawNet
® Discrimination
on
19 January 2008 at 2230L (GMT+11)
Under the Victorian Equal Opportunity Act, it is against the law to discriminate on the basis of a person's lawful sexual preference.
Under the Commonwealth Human Rights and Equal Opportunity Commission Act and on the basis of the International Labor Organisation Convention No. 111, the Commission may inquire into discrimination by any person in employment or occupation on most of the grounds included in the Victorian Equal Opportunity Act and on some additional grounds, including sexual preference.
Under the Commonwealth Workplace Relations Act 1996 (s170CK) termination of employment on certain specified prohibited grounds including sexual preference may be unlawful.
This covers the sexual orientation of gay men, lesbians, bisexuals and heterosexuals.
Discrimination on the basis of presumed sexual orientation or characteristics associated with a particular sexual orientation is also illegal under the Victorian Act.
Discrimination means treating a person less favourably than another person, in the same or similar circumstances. Discrimination maybe direct or indirect.
For example: Susan applied for a position as a receptionst with a large company. At the interview, Susan was asked about her outside interests. Susan listed a number of hobbies including her membership of a gay/lesbian choir. At this point the interviewer concluded the interview saying that he did not feel that Susan would fit into the workplace environment.
The company is directly discriminating against Susan on the basis of sexual orientation. Susan could lodge a complaint with the Commission.
Indirect Discrimination occurs when a requirement, condition or policy which appears to be neutral, in fact has a disproportionately negative impact on a particular group.
Under the Victorian Equal Opportunity Act 1995 and the Commonwealth Disability Discrimination Act 1992 it is prohibited by law to discriminate against a person because he or she -
- is living with HIV or AIDS
- is thought to be living with HIV or AIDS
- may have HIV/AIDS in the future
- is an associate of someone who is (or is assumed to be) HIV positive or have AIDS
- is a carer of someone who has AIDS.
Discrimination means treating somebody who is, or is thought to be, living with HIV or AIDS, less favourable than someone who is not living with HIV or AIDS, in the same or similar circumstances. Discrimination may be direct or indirect.
Indirect discrimination occurs when a rule, practice or policy which appears to be neutral in fact has a disproportionately negative impact on a particular group.
A firm will not employ a person because that person is living with HIV/AIDS. This is direct discrimination on the basis of HIV/AIDS status.
Under the Commonwealth Disability Discrimination Act 1992 it is prohibited by law to discriminate against a person because he or she -
- has or used to have a disability
- is thought to have a disability
- may have a disability in the future
- is an associate of someone who has (or is assumed to have) a disability
- is a carer of someone who has a disability
"Disability" includes:
- loss of physical or mental functions, for example, a person who has quadriplegia, brain injury, epilepsy or who has a vision or hearing impairment;
- loss of part of the body, for example, a person with an amputation or a woman who has had a hysterectomy;
- infectious and non-infectious diseases and illnesses, for example, a person with AIDS, hepatitis or TB, a person with allergies or who carries typhoid bacteria;
- the malfunction, malformation or disfigurement of a part of a person's body, for example, a person with diabetes or asthma or a person with a birthmark or scar;
- a condition which means a person learns differently from other people, for example, a person with autism, dyslexia, attention deficit disorder or an intellectual disability;
- any condition which affects a person's thought processes, understanding of reality, emotions or judgment or which results in disturbed behaviour, for example, a person with a mental illness or personality disorder;
Discrimination means treating somebody who has, or is thought to have, a disability, less favourably than someone who does not have a disability, in the same or similar circumstances. Discrimination may be direct or indirect.
Indirect discrimination occurs when a rule, practice or policy which appears to be neutral in fact has a disproportionately negative impact on a particular group.
A firm will not employ a person because that person is disabled or thought to be disabled or living with HIV/Aids. This is direct discrimination on the basis of a person's disability.
It is unlawful to discriminate on the basis of a person's sexual orientation in the areas of:
- employment
- accomodation
- education
- provision of goods and services
and disposal of land
- clubs and club members
- sport
- local government
There are some exceptions in some areas.
It is against the law to discriminate against job applicants, employees and contract workers on the basis of their sexual orientation.
For example: Simon had worked for an advertising company for two years. During this time he was promoted regularly and received consistently positive performance assessments. When Simon's employer realised that Simon is gay, the promotions ceased and his perfomrance assessments deteriorated. When Simon raised these issues with his employer, he was told "Don't you get it? We do'nt want your type around here".
Simon could lodge a complaint with the Commission. At any conciliation conference, possible outcomes might include an apology, compensation for loss of income and an undertaking by the company to implement an equal opportunity program in the work place.
It is against the law to discriminate on the basis of a person's sexual orientation in offering or providing accommodation.
For example: Trung and David applied to a real estate agent to rent a house. The estate agent refused to allow the couple to rent the house saying that "the owenrs don't want a gay couple, they're only interested in family types".
Trung and Davis could lodge a complaint with the Commission alleging discrimination in the provision of accomodation. At any conciliation conference possible outcomes might include an apology by the real estate agent and an undertaking to help the couple look for suitable rental accomodation.
No one can be denied entry to a University, a School, College of Advanced Education, Tertiary and Further Education (TAFE) College or a particular course of study on the basis of sexual orientation. It's also against the law to discriminate by -
- denying or limiting access to a benefit
- expelling the student
- setting unfair terms in admitting a student
- subjecting the student to any other detriment
For example: Alanna was studying policitcs at university. She consistently obtained high academic results. During a tutorial discussion on lesbian/gay law reform Alanna referred to her personal experiences of discrimination. From this day on, the tutor made constant derogatory references to Alanna's sexuality in class. Although the quality of Alanna's academic work did not change, Alanna began to fail assignments.
Alanna could lodge a complaint with the Commission claiming discrimination in education.
It is against the law to refuse to provide goods and services or to supply goods or services on less favourable terms to a person because of their sexual orientation.
For example: Ben went to hospital to have minor elective surgery. The day after the operation, Ben was visited in hospital by his partner Joe. After this visit Ben received poor hospital care. Ben's requests for pain control, water and changing of sheets were refused by the hospital staff.
Ben could lodge a complaint with the Commission, claiming discrimination in the provision of goods and services. At any conciliation conference, possible outcomes might include an apology by the hospital and an undertaking to commence an anti-discrimination training program aimed at hospital staff.
A social, recreational, sporting or community service club which is located on Crown land or receives and financial assistance from the Government or a municipal Council, may not discriminate against applicants for membership or club members on the basis of sexual orientation.
For example: Fran and Meg were members of a local golf club which occupies crown land. When it became obvious that the pair were a couple, they began to experience discriminatory treatment from the club. When the couple telephoned the club to book a time to play golf, they were always told that no time slots were available.
The couple could lodge a complaint with the Commission, claiming discrimination by the club.
It is against the law to discriminate against a person (after 1 January 1996) on the basis of their sexual orientation by failing to select them for a sporting team or excluding them from participating in a sporting activity.
For example: James, a keen football player was a member of the local football team. When James' sexual orientation became known by his team mates and coach, he was fired from the team.
James could lodge a complaint with the Commission.
Under the Commonwealth Sex Discrimination Act 1984 and the Victorian Equal Opportunity Act 1995 it is also against the law to sexually harass another person in the same areas of public life where discrimination is against the law. The sexual orientation of the perpetrator or victim is irrelevant.
Sexual harassment is behaviour of a sexual nature that is unwelcome, unsolicited and unreciprocated. It can consist of:
- unwelcome comments about a person's sex life or physical appearance
- suggestive behavious such as leering and ogling
- unnecessary physical intimacy such as brushing up against a person
- sexual jokes, offensive telephone calls, photographs, reading matter or objects
- sexual propositions or continued requests for dates, physical contact such as touching or fondling
- indecent assault or rape (which are also criminal offences)
Example 1: Maria worked in a bank. Her being a lesbian was a constant source of amusement to Garry, one of her male co-workers. Garry constantly planted postcards of nude women on Maria's desk and constantly asked female co-workers if Maria made passes at them.
Maria could lodge a sexual harassment complaint with the Commission. At a conciliation conference, possible outcomes might include compensation, an apology from Garry and the bank, Garry's agreement to move to another branch and an undertaking by the bank to implement an equal opportunity and sexual harassment policy.
Example 2: Anthony worked in a bicycle shop. Brett, the store manager made repeated sexual innuendos, propositions and suggestions to Anthony. Upset, Anthony resigned.
Anthony could lodge a sexual harassment complaint with the Commission.
It is also against the law:
- to request or require information that could be used to form the basis of discrimination; and
- to discriminate against another person on the basis of:
- Age
- Disability
- Industrial Activity
- Marital, parental or carer status
- Physical features
- Political beliefs or activity
- Pregnancy
- Race
- Religious belief or activity
- HIV/AIDS status
- Personal association with a person who is identified
by reference to any of the above attributes
For example: Nick's mother Tania is a lesbian. Nick works as a waiter at a restaurant. His employer happens to hear about Tania's lifestyle and fires Nick saying he "comes from a family of degenerates".
Nick could lodge a complaint with the Commission, claiming discrimination on the basis of personal association.
Apart from the Workplace Relations Act (sub-ss170CE(7), (8)), which sets a 21-day time limit for lodgment of a termination of employment application (extendable in appropriate circumstances), the other discrimination statutes use 12 months as the basis for considering the acceptance or declining of complaint.
The Victorian Equal Opportunity and Human Rights (formerly the Equal Opportunity Commission) provides a confidential, impartial and free complaints
resolution service. To make a complaint or get more information call the Commission's enquiries line.
Note that it is also against the law for anyone to hassle or "victimise" a person because they have lodged a complaint with the Commission.
Most complaints are voluntarily conciliated. Negotiated outcomes may include job reinstatement, an apology, policy changes or compensation.
If conciliation is not successful, a person complaining may have the matter referred to the Anti Discrimination Tribunal. This Tribunal has the power to hear evidence and to make an order to redress the situation.
It is possible to ask the Tribunal for a private hearing and to stop publication of names and addresses.
An aggrieved person may consider taking the complaint to any professional groups to which they, and/or their former employers or supervisors, might belong. Many counseling professions have included sexual orientation in their nondiscrimination policies, and some may have forums, such as ethics panels, that accept complaints.
If a worker could successfully bring such a claim, the employer could lose their professional accreditation, which in turn may jeopardize continued provision of the service the professional delivers or even affect contracts with other organisations or government.
A worker may have additional legal protections if covered by a union contract, assuming membership to a union that had negotiated with management specific provisions covering sexual orientation, particularly as a government employee.
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Disability Discrimination Law Advocacy Service
343 Little Collins Street, 11th Floor
GPO Box 1139K Melbourne 3001
T: +61 (0)3 9602 4877
TTY: +61 (0)3 9602 4135 Vic Country: 1800 651 275
F: +61 (0)3 96024979
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Victorian Equal Opportunity and Human Rights Commission
(formerly the Equal Opportunity Commission)
Level 3, 380 Lonsdale Street, Melbourne
T: 1300 292 153 (advice line)
F: 1300 891 858
TTY: 1300 289 621
W: www.veohrc.vic.gov.au
E: information@veohrc.vic.gov.au
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Human Rights & Equal Opportunity Commission
Level 8, Piccadilly Tower
133 Castlereagh Street, Sydney, New South Wales 2000
T: (02) 284-9600
C: (018) 021 199
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Anti-Discrimination Commission Queensland (ADCQ)
Level 1, RAMS House, 189 Coronation Drive, Milton 4064
PO Box 2122, Milton 4064 [Mailing]
T: 1300 130 670
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HIV Aids Legal Centre Victoria (HALC)
Peter Knight Centre
6 Claremont Street
T: +61 (0)3 9865 6700
F: +61 9826 2700
E: finhr@vicaids.asn.au
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HREOC Tasmania
AMP Society Building
27 Elizabeth Street. Hobart 7001
T: (002) 34 3599
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HREOC Northern Territory
First Floor, TGC Centre
80 Mitchell Street, Darwin 0800
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ACT Human Rights Office
Level 2, Comcare Building
40 Allara Street, Canberra 2601
T: (06) 247 4117
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Commisioner for Equal Opportunity
Ground Floor, Wakefield House
30 Wakefield Street, Adelaide 5000
T: (08) 226 5660
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Equal Opportunity Commission
West Australia Centre
141 St Georges Terrace, Perth 6000
T: (09) 264 1930
If you have information relating to the law concerning discrimination in other states in Australia or in other countries, send details to GayLawNet®
