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Equal Opportunity Law for “Beyond Tools” Men’s Shed Conference Monday 13th October 2014 © Equal Opportunity Commission Australian Anti-discrimination Legislation Federal Legislation • Racial Discrimination Act (1975) • Sex Discrimination Act (1984) • Human Rights and Equal Opportunity Commission Act (1986) • Disability Discrimination Act (1992) • Age Discrimination Act (2004) © Equal Opportunity Commission Australian Anti-discrimination Legislation Other States/Territories • New South Wales: Anti-Discrimination Act (1977) • Victoria: Equal Opportunity Act (2010) and Charter of Human Rights and Responsibilities Act (2006) • South Australia: Equal Opportunity Act (1984) • Queensland: Anti-Discrimination Act (1991) • Australian Capital Territory: Anti-Discrimination Act (1991) • Northern Territory: Anti-Discrimination Act (1992) • Tasmania: Anti-Discrimination Act (1998) • Western Australia: Equal Opportunity Act (1984) © Equal Opportunity Commission Equal Opportunity Act 1984 • Inform and educate • Investigate and attempt to conciliate complaints © Equal Opportunity Commission Complaint process • • • • • • • Complaint within jurisdiction Complaint in writing Aggrieved person(s) Union Advocate Onus of proof Statute of limitations - 12 months © Equal Opportunity Commission The State Administrative Tribunal • Independent body with powers to determine a breach of the EO Act • Hearings public although mediation process in private • Damages not exceeding $40,000 per complaint • Also powers to grant interim orders and exemptions to the Act. © Equal Opportunity Commission Outcome of Complaints Closed for 2012-13 Withdrawn 224 Dismissed 211 Referred to SAT 48 Lapsed 121 © Equal Opportunity Commission Conciliated 175 Direct Discrimination Treating someone less favourably than another person in the same or materially similar circumstances. Treating someone less favourably than another because of a characteristic which applies or is assumed to apply to a group to which that person belongs. Example: You don’t get the job because of your skin colour or because of your age © Equal Opportunity Commission Indirect Discrimination Indirect discrimination is where there is a rule or requirement that is the same for everyone, but which has an adverse effect or result on particular groups and which is not reasonable having regard to the circumstances. Examples: • Family responsibilities • An employer requires employees to wear a uniform including a cap © Equal Opportunity Commission Essential Elements of Indirect Discrimination • The discriminator requires the aggrieved person to comply with a requirement or condition. • A substantially higher proportion of persons of a different status comply or are able to comply. • The requirement is not reasonable having regard to the circumstances of the case. • The aggrieved person does not or is not able to comply. © Equal Opportunity Commission Grounds Covered • Sex • Breastfeeding • Marital Status • Pregnancy • Race - (including race of a relative or associate) • Impairment - (including impairment of a relative or associate) • Political or Religious Conviction (or lack of Conviction) • Family Responsibility or Family Status (in employment or education) • Age - (age of relative or associate in certain areas) • Gender History • Sexual Orientation • Publication of name in fines enforcement register website © Equal Opportunity Commission EO Act Section 67 - Victimisation Subjecting a person to any detriment or threat of detriment because they have: • made a complaint under the Act; • provided information or documents to the Commission; • attended a conciliation conference; • appeared as a witness in Commission proceedings; • reasonably asserted their rights under Act. © Equal Opportunity Commission Complaints Received by Ground for 2012-13 Breastfeeding 3 Spent Conviction 4 Political Conviction 6 Family Status 7 Marital Status 9 Sexual Orientation 13 Religious Conviction 15 Pregnancy 22 Impairment 194 Sex 39 Age 51 Race 162 © Equal Opportunity Commission Victimisation 79 Sexual Harassment 83 Family Responsibility 17 Racial Harassment 33 Areas Covered • Work • Education • Access to places and vehicles • Goods, services and facilities • Accommodation • Membership of a club • Application forms • Disposal of land © Equal Opportunity Commission Complaints Received by Area for 2012-13 Clubs 4 Access to Places and Vehicles 22 Education 45 Accommodation 127 Employment 410 © Equal Opportunity Commission Goods, Services and Facilities 130 Work • Applicants and employees • Commission agents • Contract workers • Partnerships (6 or more partners) • Professional or trade organisations • Qualifying bodies • Employment agencies © Equal Opportunity Commission Exceptions Example Section 50 (race) Discrimination is not unlawful if it involves:a) participation in a dramatic performance or other entertainment for reasons of authenticity; b) participation as an artist’s or photographic model in the production of a work of art, etc. for reasons of authenticity; c) working in a place where food or drink is consumed for reasons of authenticity; or d) providing persons of a particular race with services for the purpose of promoting their welfare © Equal Opportunity Commission Examples of Measures Intended to Achieve Equality • Teaching English to non-English speaking students without being open to a complaint by English speaking students, to whom the course would not be available. • A program designed exclusively for Aboriginal people. • A training program for women to acquire new skilled tasks within a company, tasks that were previously performed only by males. • Training in resume writing, interview techniques and personal presentation restricted to people between 40 and 50 years of age. • A club set up for a particular ethnic group. * © Equal Opportunity Commission Workplace Harassment • Harassment is a form of discrimination • It consists of offensive, threatening or abusive behaviour • For it to be unlawful however, the harassment has to be on of the grounds specified in legislation © Equal Opportunity Commission Sexual Harassment The WA Equal Opportunity Act 1984 defines “sexual harassment” as an unwelcome sexual advance, an unwelcome request for sexual favours or unwelcome conduct of a sexual nature. The Act also requires that a person who is harassed believes that they will be disadvantaged if they reject, refuse or object the advance or request, or is actually disadvantaged because of their rejection, refusal or objection. Only applies in employment, accommodation or education. The definition of sexual harassment includes making verbal or written statements of a sexual nature either directly to the person or in their presence. © Equal Opportunity Commission Examples of Sexual Harassment • • • • • • • • • • • • • Jokes and innuendo Name calling Ridicule Leering Practical jokes Invasive questioning Belittling comments Invasion of personal space Suggestive unwanted SMS messages, emails Physical contact Potential Criminal Offences Indecent exposure Assault © Equal Opportunity Commission Why Sexual Harassment is Not Reported • It may go away if ignored • Worried about losing their job • Wanting to fit in • Fear no-one will believe them • Feelings of intimidation, embarrassment, shame or helplessness • Fear of retaliation • Lack of understanding of rights • Assumptions that the harasser will not face serious consequences © Equal Opportunity Commission Racial Harassment The WA Equal Opportunity Act defines “racial harassment” as an act or action either verbal or written that threatens, abuses, insults or taunts a person because of: • their race • a characteristic that appertains generally to that persons race; or • a characteristic imputed to that person; and the person harassed believes that they will be disadvantaged if they object to the harassment or are actually disadvantaged. Only applies in employment, accommodation or education. © Equal Opportunity Commission Examples of Racial Harassment • Racist graffiti, pictures, posters or written material that is offensive or obscene • Offensive or mocking comments about some attribute or characteristic of another person’s race • Racist jokes • Abusive messages and material on electronic mail or computer networks • Insulting or threatening gestures • Deliberate exclusion © Equal Opportunity Commission EO Act - Section 161 Vicarious Liability An employer is vicariously liable for the actions of employees or agents where the actions:• are carried out in connection with their employment or duties; and • the actions would be unlawful under the Equal Opportunity Act as if carried out by the employer; and • where it cannot be established that the employer has taken all reasonable steps to prevent such acts occurring. © Equal Opportunity Commission Reducing Employer Liability “Reasonable Steps” could include:• Preparation and regular circulation of written policy prohibiting discrimination and harassment. • Ensuring all staff properly trained about discrimination and harassment and its prevention. • Establishing effective complaint procedures. • Treating all complaints seriously and investigating them promptly. • Ensuring appropriate action is taken to address and resolve complaints. • Monitoring the workplace environment and culture. © Equal Opportunity Commission What is Bullying? Repeated unreasonable or inappropriate behaviour directed towards a worker, or group of workers, that creates a risk to health and safety. (Occupational, Safety and Health Legislation) WorkSafe: Violence, Aggression and Bullying 2006 © Equal Opportunity Commission Examples of Workplace Bullying • Jokes and teasing • Behaviour that frightens, humiliates, belittles, degrades • Yelling and screaming • Interfering with personal effects or equipment • Abusive, insulting or offensive language • Overloading or not providing enough work • Setting tasks beyond skill levels • Denying access to information or resources • Unfair treatment in accessing entitlements i.e. training or leave © Equal Opportunity Commission 2007 Review of the Equal Opportunity Act New Grounds of Discrimination • Bullying • Vilification – racial, sexual orientation, religious, impairment • Potential pregnancy • Membership or on membership or an association or organisation or union • Irrelevant criminal record • Profession, occupation trade or calling © Equal Opportunity Commission Review of the Equal Opportunity Act Continued • Physical features • Gender identity • Irrelevant medical record Changing existing grounds Removing of conditions of: • Unreasonable, having to show disadvantage (racial and sexual harassment), higher level of proof of victimisation • Changes also to existing areas and exceptions and exemptions (review available on-line at www.eoc.wa.gov.au) © Equal Opportunity Commission Contact Details Telephone: 9216 3900 Internet: www.eoc.wa.gov.au Email: [email protected] Address: Level 2 Westralia Square 141 St Georges Terrace Perth © Equal Opportunity Commission