T1, 2021 business law lecture week 10 - anti-discrimination law ppt

1. Lecture 10 Anti-Discrimination Law
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2105AFE –
Legal Issues for Managers

2. Objectives / Readings
• The objectives of the Anti-Discrimination
lecture is to make students aware of their
rights and obligations with particular
reference to the workplace
• To achieve this purpose the lecture will focus
on both the statute (Anti-Discrimination Act
Qld 1991) and the relevant common law
cases.
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3. Quick Questions
Which of the following questions are acceptable/
unacceptable for an employer to ask a job applicant?
Why/Why Not?
• How old are you?
• Are you married or single ?
• Do you have children at home?
• Can you give me a small photo of yourself to accompany
this application?
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4. Anti-Discrimination Defined
• Anti-discrimination legislation focuses upon
– what conduct constitutes “unlawful discrimination” =
prohibited conduct.
• Anti Discrimination legislation applies to conduct
which has already occurred or which is likely to
occur (proposed) and
– seeks to deter conduct by providing a remedy to
someone who is subject to the unlawful conduct;
– Only punishes conduct that breaches the legislation; and
– Generally reactive.
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5. Human Rights Based - Regulations
• Anti-discrimination and Equal Employment
Opportunity legislation are both about trying to ensure
that no unlawful discrimination occurs in employment
and are both based on international obligations.
• Both (in different ways) attempt to ensure that all
individuals are judged according to their personal skills
and merit.
• Anti-Discrimination Legislation also covers other areas
(outside of employment) such as the supply of goods
and services.
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6. Anti-Discrimination Legislation
• Managerial prerogatives are being
increasingly constrained by legislation such
as:
– Anti-Discrimination Legislation:
• Covering such aspects of employment as recruitment,
selection, conditions of employment, promotion,
termination, transfer, training, dealings with
employment agencies, trade union membership, job
advertisements, equal opportunity and sexual
harassment.
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7. UNLAWFUL DISCRIMINATION?
• Discrimination occurs where an individual
or group of people are excluded from a
benefit or opportunity because of a
characteristic.
• Unlawful discrimination is treatment on the
basis of an attribute, which is less
favourable to a person or group of persons,
in a particular area, when a exemption or
defence does not apply.
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8. Anti-Discrimination Legislation
• Other actions under the Anti-Discrimination
Legislation include:
– Sexual Harassment
– Victimisation
– Vilification
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9. Bullying
• Bullying may create a cause of action via
another means under the various Anti-
Discrimination Acts.
– For example:
• If bullying is on the basis of a protected attribute, it could
amount to discrimination, sexual harassment,
victimisation, or vilification. Must prove connection
between the attribute and the treatment; or
• It could be linked to Victimisation.
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10. Commonwealth (Federal)
Anti-Discrimination - Legislation
• Commonwealth (Cth) Acts
– Human Rights & Equal Opportunity Act 1986 (Australian
Human Rights Commission Act 1986)
– Racial Discrimination Act 1975
– Sex Discrimination Act 1984
– Disability Discrimination Act 1992
– Age Discrimination Act 2004
– Equal Employment Opportunity (Commonwealth
Authorities) Act 1987
– Public Service Act 1999
– Equal Opportunity for Women in the Workplace Act 1999
– Fair Work Act 2009 10

11. Queensland Anti-Discrimination
Legislation
• Queensland Acts
– Equal Opportunity in Public Employment Act 1992
– Industrial relations Act 1999
– Anti-Discrimination Act 1991 (QADA)
 PLEASE Make sure on the EXAM that you
answer the question under the Act that has
been asked of you!
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12. Statutory approach in all
Anti-Discrimination legislation – Template*
1. Attribute (Ground): Was the alleged discrimination based on grounds/attributes
covered by the legislation?
2. Type: Direct or Indirect discrimination: Does the alleged treatment fall within
one of the definitions of discrimination included in the legislation?
3. Area: Did the alleged discrimination occur in one of the areas covered by the
legislation?
4. Exemptions (Defences): Is the Employer vicariously liable for the actions of the
Employee? Do any exemptions (defences) apply that would render the
discrimination not unlawful?
5. Procedure: What is the procedure to lodge a claim?
6. Remedy: What is the likely remedy (if any)?
• Note that in an ILAC steps 5&6 should be covered in your conclusion
• Note this is only for a Direct or Indirect Discrimination Claim and does not apply to
sexual harassment, vilification or victimisation.
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13. ATTRIBUTES – QADA
Section 7 – Discrimination on the
basis of certain attributes is prohibited
a) sex
b) relationship status
c) pregnancy
d) parental Status
e) breastfeeding
f) age
g) race
h) impairment (Disability)
i) religious or religious activity
j) political belief of activity
k) trade union activity
l) lawful sexual activity
m) gender identity
n) sexuality
o) family responsibilities
p) Association with or relation to a person identified on the basis of any of the
attributes
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14. Examples – Which attribute?
1.A public building, while fitted with lifts has a set of six steps at the front
entrance. Entry for those needing to use the lift is though the back entrance
near industrial bins.
2.Minimum height requirements apply for jobs in a resort, for no apparent
reason.
3.All information about workplace health & safety in a factory is printed in
English.
4.A requirement for a job is that all applicants have five years continuous
experience in the field.
5.Everyone entering a sporting venue has to present a driver’s licence as
identification, because it has a photo.
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15. TYPES OF DISCRIMINATION
- Direct - QADA
• S 10 QADA – Meaning of Direct
Discrimination
– Occurs when a person treats or proposes to
treat a person with an attribute
– less favourably than a person without the
attribute
– in the same or not materially different
circumstances
– because of the attribute (actual or imputed).
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16. Case: Direct Discrimination- Attribute - Age
- Type - Direct - Area - Work - Exemption - No - Vicarious Liability - Employer Liable
Lightning Bolt Co Pty Ltd v Skinner & Anor [2002]
Facts
– 2 Complainants dismissed and ‘replaced’ by 2 younger employees (E/e’s).
– Employer (E/r) said other reasons were the ‘substantial reasons’ for their
dismissal – not their age, such as a downturn in business. But could not
explain how cost savings achieved by replacing them.
– E/r said that he would not have employed one of complainants if knew of
hernia operation/poor hearing.
Held
– A lot of the E/r’s evidence about the ‘reasons’ for their dismissal found to
be untrue by ADTQ.
– The substantial reason for dismissal = age = Tribunal assessed Mr
Skinner's damages at $72,582 and Mr Smith's damages at $8,906.
– On Appeal - Qld Supreme Court agreed.
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17. TYPES OF DISCRIMINATION
- Indirect Discrimination - QADA
• S 11 QADA - Meaning of Indirect Discrimination
– Occurs when a term is imposed that a person with the
attribute does not or is not able to comply; and
– a higher proportion of people without the attribute
can or are able to comply; and
– the term is not reasonable.
– Example direct vs indirect
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18. Case: Indirect Discrimination - Attribute – Impairment - Type – Indirect –– Area -
Services – Exemption – No – Liability - Government Liable
Cocks v State of Queensland (1994)
Facts
– In Cocks v State of Queensland, 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.
Held
– 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.
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19. AREAS COVERED BY THE QADA
• Anti-Discrimination legislation does not prohibit
discrimination wherever it occurs. Rather, it only applies to
certain, specified areas of public life –
• Only covers certain areas of public life which include:
– Discrimination in the pre-work area (s14)
– Discrimination in work area (s15)
– Discrimination by principals (s15A)
– Partnership (ss16-18)
– Industrial, Professional, Trade or Business Organisation (ss19-23)
– Education (ss37-44)
– Provision of goods and services (ss45-51)
– Superannuation (ss52-65)
– Insurance (ss66-75)
– Disposition of land (ss76-80)
– Accommodation (ss81-92)
– Club membership (ss93-100)
– Administration of State laws & local govt (ss101-102)
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20. **Vote Break** Case: Area of Work – Attribute – Sex,
Pregnancy - Type – Direct– Area – Work – Exemption – No – Vicarious Liability - Employer Liable
Hickie v Hunt [1998]
Facts
– Marea Hickie employed as a solicitor with Hunt & Hunt in 1988.
Hickie progressed rapidly she became a contract partner for 1 year in
1995.
– At the time Hickie was pregnant, which the firm knew about. She
took maternity leave but returned to work part-time 4 months later.
– After her return, Hunt & Hunt decided not to renew Ms Hickie's
contract as partner.
Held
– Hickie suffered direct discrimination which led to the termination,
only firm for whom she had worked since graduation.
– Compensation for loss and damage in the sum of $95,000.
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21. EXEMPTIONS - Section 25 - Genuine
Occupational Requirements
s25(1) A person may impose genuine occupational
requirements for a position.
Examples of genuine requirements for a position —
– Example 1 — Selecting an actor for a dramatic performance on
the basis of age, race or sex for reasons of authenticity
– Example 2 — Considering only women applicants for a position
involving body searches of women
– Example 3 — Employing persons of a particular religion to
teach in a school established for students of the particular
religion.
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22. Case: Genuine Occupational Requirement (GOR) –
Attribute – Impairment – Type – Indirect Discrimination –– Area – Work – Exemption – Not Genuine Occupational
requirement - Liability - Employer Liable
Flannery v O’Sullivan [1993]
Facts
• Flannery was refused entry to Qld Police Force because he was
myopic (problem with eyesight).
• Respondent submitted:
– eyesight ‘standard’ was a GOR for all Qld police officers.
– Flannery’s impairment would impose unjustifiable hardship.
– discrimination was necessary to protect WHS of people at place of work.
Held
– GOR was whether Flannery could perform the work, not whether he needed to wear
contact lenses or glasses to do so. He established that he could perform the work.
– No evidence that a member of the public or another police officer had ever had his/her
health or safety put at risk by a police officer suffering from myopia.
– Not sufficient if a potential employer regards a specific requirement as a GOR if in
objective terms it is not.
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23. Case: Exemption - Impairment
X v Commonwealth (1999)
‘Genuine Occupation (Inherent) Requirements’
defence:
– “depends on whether it was an "essential
element" of the particular employment.
Inherent requirements … embrace much more
than the physical ability to carry out the
physical tasks encompassed by the particular
employment” [Or vice-versa]
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24. VICARIOUS LIABILITY- QADA
s133 Vicarious liability
– (1) If any of a person’s workers or agents contravenes the
Act in the course of work or while acting as agent, both the
person and the worker or agent, as the case may be, are
jointly and severally civilly liable for the contravention, and
a proceeding under the Act may be taken against either or
both.
– (2) It is a defence to a proceeding for a contravention of the
Act arising under subsection
• (1) if the respondent proves, on the balance of probabilities,
that the respondent took reasonable steps to prevent the
worker or agent contravening the Act.
• Howard v Geradin
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25. Case: Vicarious Liability- Attribute - Sex - Type - Direct –
Area – Pre-Work – Exemption – No – Vicarious Liability - Employer Liable
• Ansett Transport Industries (Operations) Pty Ltd v
Wardley (1984)
Facts
– Deborah Wardley applied to become a trainee pilot with Ansett
Airlines.
– She was refused employment on the grounds that she was a woman
and intended to have children.
Held
– The Tribunal held that Ansett had discriminated against her on the
grounds of sex by treating her less favourably than a man would have
been in similar circumstances.
– Damages = $14,500 plus $40 per day until engagement as trainee.
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26. Case: Age - Attribute - Age - Type – Indirect – Area – Work – Exemption –
Genuine Occupational (Inherent) Requirement - Liability - Employer Not Liable
Qantas v Christie (1998)
Facts
– Mr Christie was an airline pilot for Qantas.
– At age 60, Mr Christie still had the physical ability to fly 747's.
– However, an age limit of 60 imposed by other countries on pilots in
their air space meant that, if Mr Christie continued to be employed by
Qantas, he would only be assigned to a restricted number of routes.
Held
– Mr Christie was unable to carry out an “inherent requirement” of his
position.
– Namely, the capacity to fly to all (or reasonable number) of Qantas'
destinations.
– ‘Inherent requirement' (Genuine Occupational Requirement) meant
that pilots must have the capacity (physically, mentally and legally) to fly
B747-400 flights to any part of the world.
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27. Case: Race – Attribute – Race - Type – Direct Discrimination – Area – Work
– Exemption – Not Workplace Health & Safety - Liability - Employer Vicariously Liable (also
Vilification)
Ardeshirian v Robe River Iron Associates (1990) –
Facts
– A mine worker of Iranian descent was subjected to repeated racist abuse
and harassment.
– The union exercised much control over the workplace and because he was
out of favour with the union his appeals to management received no
response.
– He was dismissed after a racist attack on him by a fellow worker in which he
responded by arming himself with a iron bar and threatening his co-worker.
– An inquiry into the event led by union officials led to his dismissal.
Held
– The Tribunal held that the applicant’s race and colour was the dominant
reason for his dismissal.
– He was awarded damages of $10,000.
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28. Case: Religious Belief- Attribute - Religious Belief or Activity -
Type - Direct Discrimination - Area - Work - Exemption - Genuine Occupational (Inherent)
Requirement - Liability - Employer Not Liable
Gounder v Allmand [2007]
Facts
• A worker at an accountancy firm was dismissed from employment and
tried to claim religious discrimination on the basis of his Hindu religious
practice of fasting.
• He said the employer had claimed that this affected his ability to do his
job.
• His employer argued that this was not the case and was able to
demonstrate examples of poor work performance, as the reason for his
ultimate dismissal.
Held
• Employer not liable.
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29. Escobar v Rainbow Printing Pty Ltd [2002]
Facts
• Sandra Escobar employed as a payroll and accounts clerk for Rainbow
Printing Pty Ltd by Michael Meoushy, sole director & s/holder.
• After 6 months maternity leave, Escobar sought part-time work instead
of returning to her full-time position. Rainbow refused part-time work
and so she then requested her full-time position back.
• This was also refused as the management had engaged another full-time
employee to cover her job.
Held
• Meoushy unlawfully dismissed her from her employment in August 2000
because of family responsibilities and sex.
• $7000 in damages and an apology was Awarded.
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Case: Family Responsibility –
Attribute - Family Responsibilities- Type – Indirect Discrimination - Area –
Work – Exemption - No - Liability – E/r vicariously liable

30. SEXUAL HARASSMENT
• Prohibited under the Anti-Discrimination Act
1991 (Qld)
• Applies to public life – i.e. not restricted just to
the specific areas covered by the Act.
• The main section 119 - Meaning of sexual
harassment - has three elements:-
1. Unwelcome or unsolicited conduct relating to the
other person;
2. Of a sexual nature;
3. With the intention of offending, humiliating or
intimidating the other person (subjective test) ; OR
In circumstances where a reasonable person would
have anticipated the possibility that the other
person would be offended, humiliated or
intimidated by the conduct (objective test).
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31. Case: Sexual Harassment
Bennett v Everitt (1988)
Facts
– 2 female employees were asked questions in their pre-employment interviews relating to their
sex lives.
– Both received the jobs after interviews and worked part-time in a fish shop.
• 1st complainant:
– employer touched the 1st complainant's body on a number of occasions.
– offered 1st complainant a sum of money to have intercourse with him in his caravan.
– She resigned after the employer exposed himself to her after following her into the
shop freezer!
• 2nd complainant:
– employer touched her body on 2 occasions.
– made comments of a sexual nature and suggestions about her having intercourse.
– 2nd complainant also resigned from her job.
Held
– There are circumstances where a single action or statement may amount to
unwelcome conduct … clearly unwelcome without the need for a repetition following
rejection.
– First complainant received $7,000 and the second complainant $6,000.
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32. VILIFICATION
• A public act of showing and inciting hatred towards, serious contempt for, or
severe ridicule of, a person or group of persons on the basis of the person or
groups race, religion, sexuality or gender identity.
• Two Types – Ordinary & Serious
• Section 124A – (Ordinary) Vilification on grounds of race,
religion, sexuality or gender identity unlawful
• Section 131A – (Serious) Offence of serious racial,
religious, sexuality or gender identity vilification
• Additional requirement of proving:
• Threat of physical harm; or
• Inciting threat of physical harm.
• Note that vilification must be based on Race, Religion, Sexuality or Gender
Identity.
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33. Case: Vilification (Race)
Anderson v Thompson [2001]
Facts
– Mrs Anderson, French Mauritian nationality,
was living in Housing Department accommodation in Cronulla.
– After she returned from shopping, suffered gross, racially based
insults from another Housing Department resident, Mr Thompson
who lived in the garage.
– Overheard by her 15 year old son & another neighbour.
Held
– When Mrs Anderson was confronted and abused because of her race
in the stairwell of the building = overheard = form of communication
to the public.
– “it had a strong connotation of racial abuse” - “sufficiently
connected” to attitude of racial abuse.
– Incitement was on the ground of race.
– Compensation = $5,000. 33

34. VICTIMISATION
– ss129-131 QADA
• Main section is:
• Section 130 - Meaning of victimisation
• (1) Victimisation happens if a person (the respondent) does an act, or threatens to do an act,
to the detriment of another
• person (the complainant) —
• (a) because the complainant, or a person associated with, or related to, the complainant—
• (i) refused to do an act that would amount to a contravention of the Act; or
• (ii) in good faith, alleged, or intends to allege that a person committed an act that would
amount to a contravention of the Act; or
• (iii) is, has been, or intends to be, involved in a proceeding under the Act against any person;
(b) because the respondent believes that the complainant, or a person associated with, or
related to, the complainant is doing, has done, or intends to do one of the things mentioned
in paragraph (a)(i), (ii) or (iii).
• (2) In this section, a reference to involvement in a proceeding under the Act includes—
• (a) making a complaint under the Act and continuing with the complaint, whether by
investigation, conciliation, hearing or otherwise; and
• (b) involvement in a prosecution for an offence against the Act; and
• (c) supplying information and producing documents to a person who is performing a function
under the Act; and
• (d) appearing as a witness in a proceeding under the Act.
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35. Case: Victimisation
D v Berkeley Challenge Pty Ltd
(2001)
Facts
– A cleaner at a school was allegedly attacked
and sexually harassed by another employee
involving verbal abuse and vibrator.
– Complainant suffered stress.
– Employer subsequently transferred, demoted
and then dismissed complainant.
Held
– If a manager dismisses an employee who
makes a genuine complaint, in absence of a
clear explanation then the employee.
– May infer that DETRIMENT occurred on the
ground of victimisation.
– Victimisation had occurred.
– Damages = $26,800.
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36. PROCEDURE
• Decided by the Anti-Discrimination Commission and
Tribunal in Queensland (ADTQ is now part of QCAT). Can
be appealed to Supreme Court on point of law.
• S136 - Complaint must be lodged in writing.
• S138 - Must be within 1 year of incident occurring.
• Respondent given opportunity to provide written
response.
• Conciliation Conference (compulsory).
• Arbitration if not resolved at Conciliation (at the initiation
of the complainant).
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37. REMEDIES
• The main remedy is damages.
– Lockhart J in the case of Hall v Sheiban (1989)
considered that the correct approach to take when
awarding damages in discrimination cases was to
compare the position the complainant would have
been in had the discriminatory behaviour not
occurred.
• Other remedies are:
– Reinstatement
– Re-employment
– Apology
– Writing a new discrimination policy for the business.
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