Transcript Equal Opportunity for Women in the Workplace Act (EOWA) 1999

Comparison of Diversity,
Equal Employment Opportunity and
Affirmative Action
Glynis Wattus
Manager, Equity & Diversity Unit
University of Newcastle
DIVERSITY
A comprehensive organisational and managerial
process for developing an environment that
maximises the potential of all employees by
valuing diversity.
Diversity refers to human qualities that are
different from our own and those of groups to
which we belong, but are manifested in other
individuals and groups. Dimensions of diversity
include, but are not limited to:
DIVERSITY

Sex

Marital status

Disability

Sexual preference

Transgender status

Race, colour, descent, national or ethnic
origin, etho-religious background

Carers’ responsibilities
DIVERSITY

Age

Family responsibilities

Political conviction

Religious belief

Pregnancy or potential pregnancy
EQUAL EMPLOYMENT OPPORTUNITY
A term used by the federal and state governments
to refer to employment practices that ensure
nondiscrimination based on the dimensions listed
above. The principle behind EEO is that everyone
should have access to opportunities.
The NSW government has established a legislative
framework that promotes EEO for four designated
groups:
 Aboriginal and Torres Strait Islander people
 People with a disability
 People who first spoke a language other than
English
 Women
AFFIRMATIVE
ACTION
Affirmative action is one aspect of the federal and state
governments’ effort to ensure equal employment opportunity.
Members of EEO groups may not have had equal access to
job opportunities or to training and development for reasons
such as past discrimination or prejudice, different educational
experience, or being locked into low opportunity jobs.
Affirmative action strategies aim to redress these past
disadvantages and improve employment outcomes for
people from EEO groups.
The principle of Affirmative Action acknowledges that equal
treatment might not produce equal outcomes; differential
treatment may be required to achieve real equity.
DIVERSITY


inclusive of all groups
focuses on developing an environment that
maximises the potential of all employees by
valuing diversity interpersonally and
institutionally

business necessity given workforce trends

broader than ethnicity, race, and gender

not legally mandated
AFFIRMATIVE ACTION

Targeted outreach to disadvantaged
groups

helps prevent discrimination

legally mandated

SUMMARY
measures good faith efforts in
making progress in opportunities for
designated minorities and women
LEVEL PLAYING FIELD
Diverse productive
workforce

more equitable and
accessible work
environment

inclusive environment
where all employees
valued

EQUAL EMPLOYMENT
OPPORTUNITY



eliminates discrimination in
organisational policies and practices
provides access and opportunity - no
one excluded from participation
legally mandated
work environment free
from discrimination

LEGISLATION
Federal


Racial Discrimination Act 1975
Sex Discrimination Act 1984

Human Rights and Equal Opportunity
Commission Act 1986

Disability Discrimination Act 1992

Equal Opportunity for Women in
the Workplace Act 1999
L E G I S L A T I O N (Cont’d)
State
 NSW Anti-Discrimination Act 1977
Concepts




Direct and indirect discrimination
Reasonable accommodation/adjustment
Vicarious liability
Affirmative action and special measures
DIRECT
DISCRIMINATION
 treating people differently because of
their sex, race, and so on
DIRECT DISCRIMINATION (Cont’d)
Example 1
You refuse to employ people over the age of
40 because you believe that older workers are
too set in their ways and inflexible. You are
making an assumption that all older workers
are the same. This would be direct age
discrimination.
DIRECT DISCRIMINATION (Cont’d)
Example 2
You refuse to employ a woman with young
children because you are sure that this will
make her unreliable and inflexible about staying
back later some evenings. You are making an
assumption that a woman who has young
children is bound to be unreliable and/or unable
to work late. This would be direct discrimination
on the ground of family responsibilities.
INDIRECT DISCRIMINATION
Imposing an apparently neutral
condition or requirement for access to
employment, education etc. which one
group or class of people is much less
likely to be able to meet.
INDIRECT DISCRIMINATION (Cont’d)
Example 1
An employer who says they need a person over
180cm (6 feet) tall to do a job is likely to end up
disadvantaging more women than men, and more of
some ethnic groups than others. This is because
women and people from some shorter ethnic groups
are less likely to be this height than men or people
from other taller ethnic groups. If it is possible to
show that the job does not need someone 180cm
tall, or that it could easily be adapted to suit people
who aren’t that tall, then shorter women and people
from shorter ethnic groups, could claim indirect sex
discrimination or indirect race discrimination.
INDIRECT DISCRIMINATION (Cont’d)
Example 2
You decide that everyone in your team must
speak and understand English fluently so you
can be sure they are able to follow essential
health and safety rules. This policy would
obviously exclude more people of non-English
speaking backgrounds than people of English
speaking backgrounds from working with you.
INDIRECT DISCRIMINATION (Cont’d)
Example 2 (Cont’d)
Someone excluded under this policy would be
able to claim indirect race discrimination if they
could show that your policy was
“unreasonable”. For example, it might be
considered unreasonable if there were other
reasonable ways of ensuring that employees
followed essential health and safety rules - for
example, adequate training, and/or translating
important signs into several languages, and/or
using internationally understood picture signs.
HARASSMENT
Complaint heard by the NSW Equal
Opportunity Tribunal
Mr Daniels alleged that he was harassed and
discriminated against by some of his co-workers
at the Hunter Water Board because they believed
he was homosexual. He said that over a number
of years the harassment had escalated, and
management had not taken any action to prevent
it.
H A R A S S M E N T (Cont’d)
For example, he was called names like “gay bar
freak” and “poof”; graffiti about him appeared in
the male toilets; someone announced over the
public address system that he was a faggot; his
car tyres were slashed; and he was beaten up.
The Tribunal decided that he had indeed been
harassed on the basis of his presumed
homosexuality. They ordered the Hunter Water
Board to pay him general damages of $12,500
and asked the Anti-Discrimination Board to help
them conduct an anti-discrimination/harassment
education campaign for their employees.
REASONABLE ACCOMMODATION /
ADJUSTMENT
Your organisation must provide any facilities or
services a person with a disability needs to
enable them to do a particular job - for example,
particular aids or workplace adjustments, or
changes to hours of work or the way in which the
job is done. Your organisation must do this unless
you can demonstrate that doing this would cause
“unjustifiable hardship” - for example, the cost of
making the adjustments or providing the aids
would be more than your organisation can afford,
or the changes required would cause unjustifiable,
negative impact on other employees.
REASONABLE ADJUSTMENT
Examples of workplace reasonable
adjustments include:


providing synthetic speech output on
a computer for an employee with a
vision impairment;
providing voice input on a computer for
an employee with restricted hand function
or vision impairment;
REASONABLE ADJUSTMENT (Cont’d)



installing a ramp to allow an employee
using a wheelchair access to work
premises and facilities provided for
employees such as washroom and
lunch facilities;
improving the lighting at a workstation
for an employee with low vision;
providing a hand rail on a long corridor
for an employee with multiple sclerosis;
REASONABLE ADJUSTMENT (Cont’d)


providing an employee with diabetes
some private space for injecting
insulin, such as a sick room or empty
office; and
providing a two-drawer rather than
four-drawer filing cabinet so that an
employee who uses a wheelchair can
reach all material.
VICARIOUS LIABILITY
The employer is also legally responsible when any
employee behaves in a discriminatory or harassing
way - unless they can show that they took
“reasonable steps” to prevent the discrimination or
harassment from happening. This type of legal
liability is called “vicarious liability”.
For example, in relation to harassment, the
employer could be liable for harassment committed
between employees, if they (or one of their
managers or supervisors), knew about it (or should
have know about it), and didn’t do anything to stop
it, or prevent it from happening again.
PERSONAL

LIABILITY
Individuals can be held legally
responsible for their own unlawful
behaviour and can have amounts
awarded against them in court and
tribunal hearings. This can occur even
where the employing organisation has
successfully made out the defence of
having taken “all reasonable steps”.
PERSONAL LIABILITY (Cont’d)
Examples of recent damages awards made
jointly against individual perpetrators and the
employing company include:

$24,508 for sexual harassment [Dippert v
Luxford and Vrachnas Betabake Pty Ltd,
Human Rights and Equal Opportunity
Commission, No. H95/97, Cmr R Graycar,
18 July, 1996]

$55,000 for racial abuse and harassment
[Rugema v J Gadsen Pty Ltd (t/a Southcorp
Packing) (1997) EOC 92-887]
PERSONAL LIABILITY (Cont’d)

$46,120 for sexual harassment [Iturbe v
Yuen and Bamboo Garden Chinese
Restaurant, Human Rights and Equal
Opportunity Commission, No. H98/61, Cmr
Johnston, 27 July 2000]

$18,000 for sexual harassment to be paid
jointly by the individual perpetrator and the
company, and an additional $7,000 to be
paid by the company for victimisation [Leslie
v Lincoln Graham and Roger Graham and
Associates, HREOC, H99/31, Cmr Innes, 21
July 2000]
INTERESTED IN KNOWING MORE?

Visit
eoonline.uow.edu.au
http://staff.uow.edu.au/eeo/eoonline

Contact
The Equity and Diversity Unit
Phone: 4921 6547
Website: http://www.newcastle.edu.au/services/equity