10 Legal Studies, Term 4

1. DISCRIMINATION
& HARASSMENT

2.  Qld only enacted discrimination laws in 1991
 Federally they were enacted in 1984
 Anti-Discrimination Act 1991(Qld)
 ‘Discrimination’ usually comes with negative connotations
 Discrimination is a necessary part of life
 We discriminate as to who can get a loan
 Only certain people can join an under 10s sporting team
 There are men’s sporting teams and women’s sporting teams
 Some jobs only allow people over 18 to work in them
 The legal meaning of discrimination is much more narrow than
our every day meaning

3.  Qld legislation focuses on discrimination in a number of areas:
 Employment
 Education
 Accommodation
 Goods and services
 Obviously we focus on employment
 Complainant v Respondent
 Rather than Plaintiff v Defendant
 Complainant: person who claims they have been discriminated
against
 Complainant makes the complaint and brings the case to court
 Respondent will usually be the workplace that is accused of
discrimination

4.  General rule:
 If the respondent has treated someone differently because of one
of the characteristics listed previously, it is considered discrimination
 Same characteristics as in Unfair Dismissal slides
 Some characteristics are not included in the list
 Such as physical appearance and criminal history
 This means it is not prohibited by discrimination laws to dismiss, not hire
or promote someone for those reasons – such as if someone chooses to
dye their hair purple or have lots of piercings
 Unfair dismissal can also relate to:
 Family responsibilities
 Age
 Gender

5. TESTS FOR DECIDING IF ACTIONS ARE
DISCRIMINATORY
 Direct discrimination
 When an employer treats someone less favourably because they have one of
the characteristics listed
 Indirect discrimination
 When a person imposes a term or condition of employment where:
 The term of condition is one that a person with one of the characteristics cannot or
does not meet
 It is one that a higher proportion of people without the characteristic can or do not
meet
 It is not reasonable
 What is reasonable depends on several factors , including the consequences
of not meeting the term, the cost of alternative terms and the financial
circumstances of the person who imposes or proposes to impose them

6. WHY ARE THESE INDIRECT
DISCRIMINATION?
 The Government deciding to only employ people as
police officers if they are over 180cm tall
 It is not relevant to the ability to be a police officer
 It disadvantages women and people of Asian origin (more men and
non-Asians can satisfy the height limit)
 It is unreasonable
 A fast food chain requires employees to wear a cap for
appearance reasons and not hygiene or safety
reasons
 Unreasonable
 It effects those who for religious beliefs are required to wear a
headdress

7. EXCEPTIONS TO DISCRIMINATION
LAWS
 Employers can be exempt from the Act if the job has some
genuine occupational requirement
 Strength might be a genuine requirement for a job with intensive labouring
 People with certain religious beliefs might be needed to teach in religious
schools
 Young people might be needed to serve in a shop selling products for young
customers

8. Commonwealth of Australia v Human Rights and
Equal Opportunity Commission and X
(Unreported, Federal Court of Australia, 1998)
 It was found that the army could legally discharge a soldier with
HIV-AIDS
 The dismissal was not discriminatory
 Given the distinct possibility of injury during combat, as it was an
inherent requirement of the job that the soldier not put colleagues
at risk through a contagious disease

9.  It is not discriminatory to not hire someone with an impairment if
the impairment would cause unjustifiable hardship for the
employer
 ie. Even if the impaired person could carry out the job, if special measure had
to be put in place to accommodate the employee this could be considered as
unjustifiable hardship
 Example: a pizza delivery shop refuses to hire a person with a disability because
they cannot climb the stairs outside the shop
 If a ramp was put in then they could access the shop
 The court would not make the employer do so as it would be considered unjustifiable
hardship

10.  A pilot could be dismissed for their age if their age is seen as
affecting their judgement and thus their ability to fly planes
 A pregnant woman could be dismissed if her job is to carry heavy
items – her pregnancy would affect her ability to do the job she
was hired to do
 Oftentimes workplaces will try to reaccommodate an employee
rather than get rid of them, especially if it is a short term “issue”
such as pregnancy
 Ie. Move her to a clerical position for the term of the pregnancy and then
return her to her labour-intensive job when she returns to work after having
the baby

11. EQUAL EMPLOYMENT
OPPORTUNITY
11
Redundant: when an employee’s position no longer exists in the
business due to, for example, restructuring.
 Read the scenario on page 317 and complete the questions.
Share your thoughts with the class.
 The decision in the scenario does not meet EEO requirements as
this person has not been promoted on their merits.

12. ANTI-DISCRIMINATION
12
Discrimination: the unfavourable treatment of an individual based on
attributes such as race, gender, pregnancy, impairment, marital
status, age, religion or sexuality.
 Read Case Study 11.1 on page 318 and complete questions 1-4.

13. EQUITABLE WORKPLACE
PRACTICES
13
 When applying for a job or when working, both you and your
employer need to ensure there is equity in the workplace.
 This starts with abiding by anti-discrimination and equal
employment opportunity legislation in areas such as:
 Advertising jobs
 Employing trainees and apprentices
 Dismissal of employees

14. Job Advertisements
 POSITION VACANT
 PANEL BEATER
 Medium-sized company
seeks a full-time panel
beater with a minimum of
two years experience.
The potential employee
should be male aged
between 17 and 19.
Licence essential.
 Telephone Rod on (07)
5421 2312 for an
interview.
 We know that employers cannot
discriminate against you because of
certain factors (age, gender, etc),
however, how can they ensure the
‘right’ people apply for the job?
 Look at the job advertisement on the
left.
 What are some points from the
advertisement that you think should
be changed? Why?
14

15. JOB ADVERTISEMENTS CONT.
15
 Gender: ads should not state a preference for male or female
applicants, unless there are specific legal requirements for the job
to allow this discrimination. For example, a Catholic priest can
only be male.
 Age: can only be specified when the position is specifically
designed for a person of a particular age and this is listed as part
of an award. For example, a business can advertise for a ‘junior
receptionist’, junior meaning a person under the age of 21.
However, the position must be specifically designed for a junior
and must pay junior award rates only.

16. JOB ADVERTISEMENTS CONT.
16
 If you accept a job, you agree to
perform certain duties.
 It is the organisations
responsibility to ensure that their
job ads correctly outline the
duties and conditions accurately.
 If the employee starts work and
finds that the duties and
conditions are not what was laid
out initially, action could be taken
against the organisation.

17. Job Advertisements cont.
 Sometimes a situation
arises whereby a
company interviews
people for a specific
job, and then realises
that the best person to
fill it is in fact already
working for them. This
internal applicant can
be placed in the
advertised position.
 What should the organisation do
with the now vacant position?
Should they:
 Advertise it, or,
 Appoint one of the people who
interviewed for the previous role?
17
 To fill the position the company can
choose either option.
 But, if they choose to not readvertise
and to take a previously interviewed
candidate, the must ensure that the
change of circumstances and duties is
made clear.
 The person can then decide if the new
position is suitable.

18. SEXUAL HARASSMENT
 The Anti-Discrimination Act also contains laws against sexual
harassment
 Sexual harassment is any inappropriate sexually related
behaviour
 These laws were introduced because of employees
(predominantly females) being made to feel uncomfortable in the
workplace by harassment of a sexual nature
 This discouraged women from entering the workforce

19. TWO ELEMENTS OF SEXUAL
HARASSMENT
 Unlawful Harassment includes:
 Subjecting the complainant to an uninvited act of physical intimacy
 Demanding or requesting sexual favours from the complainant
 Making a remark with sexual connotations relating to the complainant
 Engaging in any unwelcome conduct of a sexual nature in relation to the
complainant
 With intent
 The person who commits the harassment must intend to humiliate, offend or
intimidate the complainant
 And/Or the harassment must be of a kind that a reasonable person must think
that the complainant might be humiliated, offended or intimidated

20. FORAN V BLOOM [2007] QADT 31
 Facts: An employer spoke openly
with his staff about his sex life and
the sexual performance of his past
and current girlfriends.
 He often dropped his trousers in the
office when sales were up in the
presence of staff, including the
complainant
 Issue: Was the employee the victim
of sexual harassment and
discrimination, as defined in the Anti-
Discrimination Act 1991 (Qld)?
 Result & Verdict: The employer
should pay the employee $3,000 for
sexual harassment and
embarrassment she suffered in the
workplace.

21. MAKING A HARASSMENT COMPLAINT
 Page 232 has a flow chart explaining how a complaint can be
made

22. TASKS TO DO…
Unfair Dismissal Discrimination & Harassment
 Activities:
 33 p.210
 35 p.212
 36 p.213
 37 p.214
 43 p.219
 Go to www.fwa.gov.au and
research the current
requirement in relation to
dismissals under the Fair
Work Act 2009.
 Activities:
 44 p.220
 49 p.225
 53 p.228
 58 p.232
 Hot Spots:
 p.223
 p.227
 p.231