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The Right to a Discrimination-Free Workplace

The Right to a Discrimination-Free
Workplace

Legal Section, Human Rights and Equal Opportunity
Commission[0]

July
2008


Table of Contents


1. Introduction

The prohibition on discrimination in employment is a relatively recent, but
now well-established, feature of the Australian legal environment. Laws
prohibiting discrimination in the workplace in Australia date back to 1966 when
South Australia introduced the Prohibition of Discrimination Act 1966
(SA), to prohibit discrimination on the grounds of race in aspects of employment
and in the provision of goods and
services.[1]

Nine years later the Commonwealth introduced the Racial Discrimination Act
1975
(Cth) (‘RDA’), which prohibits discrimination not only in
employment,[2] but in public life
generally.[3] Over time, the
protection from discrimination has been extended federally by the Sex
Discrimination Act 1984
(Cth) (‘SDA’), the Disability
Discrimination Act 1992
(Cth) (‘DDA’) and most recently the
Age Discrimination Act 2004 (Cth) (‘ADA’).

Each of the States and Territories have also introduced their own protections
which overlap with and extend the protection afforded under the federal
regime.[4]

Focusing on the federal jurisdiction, this paper looks at how
Australia’s patchwork of discrimination laws operates to create what might
be called broadly a ‘right to a discrimination-free workplace’. The
paper outlines what discrimination laws mean in practice for employers and
employees. In particular, it considers the extent to which employers are
required to provide a workplace that is not only free from obvious forms of
discrimination and harassment but also one that accommodates diversity and the
needs of, in particular, women with childcare responsibilities and people with
disability.

^Top

2. Overview of
prohibitions on discrimination and harassment in employment

(a) Scope of the unlawful discrimination
prohibitions

Discrimination is prohibited by federal unlawful
discrimination laws in all stages of
employment:[5]

  • advertising for positions;[6]
  • arranging interviews;
  • selecting the successful candidate;
  • the terms upon which employment is offered;
  • the conditions of employment;
  • access to promotions, training and benefits;
  • dismissal; and
  • subjecting an employee to ‘any other
    detriment’.

(b) Prohibited grounds

The grounds upon which
discrimination is made unlawful under the federal
regime[7] are:

  • race, colour, descent[8] or
    national or ethnic origin;[9]
  • sex, martial status, pregnancy or potential pregnancy;
  • family
    responsibilities;[10]
  • disability;[11] and
  • age.

(c) Direct and indirect discrimination

In general terms,
the unlawful discrimination Acts define discrimination as being either
direct or indirect, although those terms are not used in all of
the Acts.

  • Direct discrimination is sometimes also referred to as ‘disparate
    treatment’ discrimination. It occurs when one person is treated less
    favourably on the basis of an attribute (such as sex, race or disability) when
    compared with how a person without the attribute would be treated in the same or
    similar circumstances.[12]
  • Indirect discrimination is sometimes also referred to as ‘disparate
    impact’ discrimination. In general terms, it occurs where there is a
    requirement or condition that applies generally, but has the effect of
    disadvantaging a particular group and is unreasonable in all of the
    circumstances.[13]

(d) Harassment and racial vilification

The SDA
specifically prohibits harassment in the workplace by employers, fellow
employees and other ‘workplace participants’ including partners,
commission agents and contract workers.[14] Sexual harassment is defined, in
general terms, as unwelcome sexual conduct that a reasonable person would
anticipate would offend, humiliate or intimidate the person
harassed.[15]

The DDA prohibits harassment in the workplace ‘in relation to’ a
person’s disability or the disability of an associate.[16]

The RDA prohibits ‘offensive behaviour based on racial hatred’
(commonly referred to as ‘racial vilification’), being public acts
done because of race that are offensive, insulting, humiliating or
intimidating.[17]

(e) Exemptions

There are, broadly, three types of
exemptions available under the discrimination Acts: ‘special
measures’ exemptions, general exemptions and temporary exemptions.

‘Special measures’

‘Special measures’ are things done by way of affirmative action
that may confer a benefit upon a group that has been historically disadvantaged
in order to achieve substantive equality. Each of the Acts has its own
definition of ‘special
measures’.[18]

Relevant examples include:

  • The provision of Abstudy to Indigenous
    students;[19] and
  • Providing for 50% representation of women in union executive
    positions.[20]

General
exemptions

General exemptions under the discrimination Acts cover a range of areas.

The RDA has very limited exemptions, none of which are immediately relevant
to the employment context.[21]

The SDA includes exceptions that allow certain types of discrimination in
certain areas.[22] Most relevant to
the employment context is the exemption in s 30 that allows discrimination in
employment on the grounds of sex on the basis of ‘genuine occupational
requirements’. Section 30(2) provides some examples of ‘genuine
occupational requirements’, including dramatic performances or
entertainment where a role requires a person of the relevant
sex,[23] positions involving fitting
clothing[24] or conducting searches
of clothing or bodies,[25] positions
that require entry of lavatories used by members of one sex while in
use[26] or areas where people of one
sex will be in a state of
undress[27] and positions requiring
a person to live on premises with persons of a particular sex where there are no
reasonable alternatives.[28]

Note, however, that there are no exemptions for sexual harassment.

The DDA also includes a range of general
exemptions.[29] Most relevant to the
employment context is the ‘inherent requirements’ defence that
attaches to each of the prohibitions on discrimination in
employment,[30] against commission
agents,[31] against contract
workers,[32] in
partnerships,[33] in qualifying
bodies[34] and by employment
agencies.[35] The effect of the
defence is that it is not unlawful to refuse to employ (engage a commission
agent etc) or terminate employment (or other relevant relationship) if a person
is unable to carry out the inherent requirements of the relevant position or
work because of his or her disability. In most cases to rely on the defence, a
respondent will need to show that a person was unable to carry out the inherent
requirements of the position even with assistance that the employer could have
provided (without incurring ‘unjustifiable
hardship’).[36]

The DDA also contains an ‘unjustifiable hardship’ defence for
most areas of public life in which discrimination is otherwise unlawful: it is
generally a defence to a claim of discrimination that avoiding the
discrimination would impose an unjustifiable hardship upon the respondent.

The ADA contains a broad range of exemptions including, relevant to the
employment context, an exemption for youth
wages[37] and exempted employment
programs.[38] The ADA also contains
an ‘inherent requirements’ defence for many of the areas of public
life in which age discrimination is otherwise unlawful.

Temporary exemptions
Temporary exemptions can be sought from HREOC
under the SDA,[39]
DDA[40] and
ADA.[41] They are not available
under the RDA.

Exemptions can only be granted for purposes that further the objects of the
respective Act. They may be subject to conditions set by HREOC and are provided
for a term of no more than five years.

HREOC’s discretion to grant exemptions is broad – the Acts do not
specify the things about which HREOC must be satisfied to grant an exemption.
HREOC has developed public guidelines that set out the basis upon which it makes
exemption decisions.[42]

(f) HREOC’s functions in relation to equal opportunity in
employment and ‘ILO 111 discrimination’

This paper
is concerned primarily with federal unlawful discrimination laws – namely,
the RDA, SDA, DDA and ADA. However, it should be noted that HREOC also has a
range of functions in relation to equal opportunity in employment,[43] based on the ILO Convention
concerning Discrimination in respect of Employment and Occupation

(‘ILO 111’).[44] These
functions include inquiring into alleged acts of workplace
‘discrimination’.

‘Discrimination’ in this context needs to be distinguished from
‘unlawful discrimination’. ‘Unlawful discrimination’
refers to acts, omissions and practices that are unlawful under the RDA, SDA,
DDA and ADA.[45]
‘Discrimination’ is defined under the HREOC Act to mean:

  • any distinction, exclusion or preference;
  • made on the basis of
    • race, colour, national extraction,
      social origin, nationality;
    • sex, marital status;
    • religion, political opinion, trade
      union activity;
    • age;
    • criminal record;
    • disability, impairment, medical
      record; or
    • sexual
      preference;
  • that has the effect of nullifying or impairing equality of opportunity or
    treatment in employment or occupation;
  • but not including a distinction, exclusion or preference
    • in respect of the inherent
      requirements of a particular job; or
    • made in good faith in accordance
      with the doctrines and beliefs of a particular religion or creed necessary to
      avoid injury to religious
      susceptibilities.[46]

It
is therefore convenient to refer to ‘ILO 111 discrimination’ to
distinguish it from ‘unlawful discrimination’.

While ILO 111 discrimination overlaps with unlawful discrimination, it is
also significantly different in the following respects:

  • Unlawful discrimination applies to a range of non-employment situations
    (such as education, the provision of goods and services) but is narrower in the
    discriminatory grounds that it covers (unlawful discrimination does not cover
    areas such as sexual preference, criminal record, political opinion).
  • There are also different complaints mechanisms for unlawful discrimination
    complaints and ILO 111 discrimination complaints:
    • In both cases, complaints are
      investigated by HREOC with a view to
      conciliation;[47]
    • In unlawful discrimination matters,
      if the complaint cannot be resolved by conciliation, or is not appropriate for
      conciliation, it is terminated by the President of HREOC and the complainant can
      bring an action in the Federal Magistrates Court or Federal
      Court.[48] A successful applicant
      can seek a range of enforceable remedies, including monetary
      compensation.[49]
    • In ILO 111 discrimination matters,
      if the complaint cannot be resolved by conciliation, or is not appropriate for
      conciliation and the President forms the view that discrimination has occurred,
      s/he prepares a report to the Attorney-General that is tabled in federal
      parliament.[50] Reports can include
      recommendations for preventing a repetition of the act or continuation of the
      practice as well as the payment of compensation or other
      remedies.[51] These recommendations
      are not, however, enforceable remedies.

Employers and
employees should therefore be aware that HREOC’s ILO 111 functions provide
another avenue under which employees can seek to assert their right to a
discrimination free
workplace.[52]

^Top

3. Employee
liability

Employees will be personally liable for discrimination against fellow
employees under the RDA, DDA, and ADA where they are ‘acting or purporting
to act on behalf of an
employer’.[53]

The expression ‘acting or purporting to act on behalf of an
employer’ has not been judicially considered in the context of the RDA,
DDA and ADA. In other contexts, however, the expression ‘on behalf
of’ has been found to be a potentially broad expression extending beyond a
relationship of agency to include a ‘wide range of relationships... in
some way concerned with the standing of one person as auxiliary to or
representative of another person or
thing’.[54] It might therefore
be expected to include the actions of employees in a range of circumstances,
particularly where acting in a managerial capacity.

Under the SDA, only discrimination by an employer is made
unlawful,[55] but both employers and
employees are liable for acts of sexual
harassment.[56]

It is unlawful under the DDA for an employee to harass another employee in
relation to their
disability.[57]

It is also unlawful under the RDA for a person to do a public act because of
race that is offensive, insulting, humiliating or
intimidating.[58] Acts done by
employees in the workplace are likely to be covered by this
prohibition.[59]

^Top

4. Employer liability

Each of the federal unlawful discrimination Acts provides for vicarious
liability.

Under the RDA and SDA, an employer is liable for acts done ‘in
connection with’ an employee’s employment or an agent’s
duties.[60] The case law has
established that the expression ‘in connection with’ extends
liability beyond common law vicarious liability which is generally limited to
acts done ‘in the course of’ employment. This is discussed further
below.

Under the DDA and ADA, an employer is liable for conduct ‘engaged in on
behalf of’ an employer by an employee acting ‘within the scope of
his or her actual or apparent
authority’.[61] Commenting on
the differences between the provisions in the RDA and SDA on the one hand and
the DDA and ADA on the other, authors Lindsay, Rees and Rice have
suggested:‘[w]hether there is any meaningful difference between these
descriptions of the circumstances in which there is a sufficient nexus with the
relationship and the act of discrimination for one person to be held liable for
the discriminatory conduct of another is not yet
clear.’[62]

Employers may be vicariously liable for the discriminatory acts of their
employees (including harassment) unless they can demonstrate that they:

  • ‘took all reasonable steps’ to prevent the doing of the act
    (under the RDA[63] and
    SDA[64]); or
  • ‘took reasonable precautions and exercised due diligence to avoid the
    conduct’ (under the DDA[65]
    and ADA[66]).

The onus
is on an employer to prove that they ‘took all reasonable steps’ or
‘took reasonable precautions and exercised due
diligence’.[67]

(a) ‘Reasonable precautions and due
diligence’

The ‘reasonable precautions and due
diligence’ test applying under the DDA and ADA was considered by Raphael
FM in Vance v State Rail Authority
(‘Vance’).[68]
His Honour stated:

Case law in this area emphasises the importance of implementing effective
education programs to limit discriminatory conduct by employees and the
necessity of such programs for employers to avoid being held vicariously liable
for the acts of their employees... the test to be applied is an objective one
based upon evidence provided by the employer as to the steps it took to ensure
its employees were made aware of what constituted discriminatory conduct, that
it was not condoned and that effective procedures existed for ensuring that so
far as possible it did not
occur.[69]

Raphael FM held that the Act requires proactive and preventative steps to be
taken. Perfection is not the requisite level – only
reasonableness.[70]

Vance v State Rail Authority

In Vance, the applicant was a woman with a visual disability who
complained of indirect disability discrimination in the provision of services by
the respondent. The applicant had been unable to board a train because the guard
had not allowed sufficient time for her to do so, by closing the doors without
warning while the applicant was attempting to board.

On the issue of vicarious liability, Raphael FM held that the respondent had
taken reasonable precautions and exercised due diligence to avoid any
discriminatory conduct by its employees. In particular, the respondent had
‘thoroughly’ trained its guards and did not condone any failure to
allow people with disability to board trains. Notably, where the respondent
became aware of breaches of its ‘General Orders’ by drivers or
guards, these were dealt with by the issuing of ‘Special General
Orders’.[71]

(b) ‘All reasonable steps’

The ‘all
reasonable steps’ test applying under the SDA and RDA has been considered
in a number of cases and the following principles have been established:

  • Awareness: It is not necessary for a respondent to be aware of an
    incident of harassment for vicarious liability to
    apply.[72]
  • ‘Reasonableness’: The requirement of reasonableness
    applies to the nature of the steps actually taken and not to determine whether
    it was reasonable to have taken steps in the first
    place.[73]
  • Size of employer: The size of the employer will be relevant to the
    question of whether it took ‘all reasonable steps’ to prevent the
    employee or agent from doing the acts complained of, as it is unrealistic to
    expect all employers, regardless of size, to adhere to a common standard of
    preventative measures. The employer or principal must take some steps, the
    precise nature of which will be different according to the circumstances of the
    employer.[74]
  • Small businesses: Even in small businesses employers must have
    ‘done something active to prevent the acts complained
    of’[75] in order to make out
    the defence although this does not require a written sexual harassment
    policy.[76] Examples of the kind of
    conduct that would assist in making out the defence for a small employer
    includes:
    • providing new employees with a
      brief document pointing out the nature of sexual harassment, the sanctions that
      attach to it and the course to be followed by any employee who feels sexually
      harassed;[77]
    • informing employees that
      disciplinary action will be taken against them should they engage in sexual
      harassment, making available brochures containing information on sexual
      harassment, advising new staff that it is a condition of their employment that
      they should not sexually harass a customer or
      co-worker;[78] and
    • the existence of an effective
      complaint handling procedure to deal with complaints of
      harassment.[79]
  • Large corporations: Large corporations will be expected to do more
    than small businesses in order to be held to have acted
    reasonably.[80] For example, a clear
    sexual harassment policy should be in place. It should be available in written
    form and communicated to all members of the workforce. Continuing education on
    sexual harassment should also be
    undertaken.[81]
  • ‘No authority to harass’: It is no excuse to a claim of
    sexual harassment to argue that an employee was not authorised to harass people
    (which might otherwise take the act outside the sphere of
    employment).[82]

Shiels
v James

In Shiels v James,[83] the
applicant was the only female employee on a building construction site. She was
subjected to a range of behaviour found to constitute sexual harassment,
including inappropriate remarks and touching.

Raphael FM found that the respondent was unable to demonstrate it had taken
‘all reasonable steps’ to prevent the harassment because:

  • its anti-discrimination policy, ‘good as it was’, was not
    delivered to the applicant or indeed any of the workers on the site until six
    weeks after the applicant had commenced work and some four weeks after the
    allegations of sexual harassment;
  • there was no verbal explanation of the policy nor was its existence
    specifically drawn to the attention of workers;
  • the applicant could have expected that her interests would be looked after
    in a more direct manner in the particular circumstances in which she found
    herself, a lone female on a building site;
  • the nominated sexual harassment contact people were based off-site and the
    applicant had little or no contact with them on a day-to-day basis; and
  • the applicant complained to the harasser about the incidents but he,
    although a senior employee of the company, did not desist from the
    behaviour.[84]

The
respondent was ordered to pay $17,000 in damages.

^Top

5. The ‘hostile
work environment’

(a) The SDA

A number of discrimination cases have
considered what has been called a ‘hostile work environment’ in the
context the SDA. The cases illustrate that the cumulative impact of behaviour
and incidents in the workplace in which women are treated differently, or made
to feel uncomfortable, can amount to discrimination in the conditions of
employment. Significantly, conduct which, of itself, might not be
discriminatory, may contribute to a work environment that is detrimental to
women and give rise to liability for discrimination.

Hill v Water Resources Commission

Often the behaviour complained of has included conduct that is clearly sexual
harassment or that, of itself, constitutes a detriment. In Hill v Water
Resources Commission
[85]
(‘Hill’), for example, the complainant complained of
‘repeated acts of gender-based harassment at the workplace where she was
part of a predominantly male
workforce.’[86] The NSW Equal
Opportunity Tribunal commented that this was ‘perhaps better described as
“sexist” harassment, than sexual
harassment’,[87] although it
clearly involved both – the receipt of offensive, sex-oriented material
over a long period of time as well as unwelcome comments and a range of conduct
found to be calculated to make female employees feel uncomfortable and
unwelcome.

However, some of the conduct the subject of the Hill case would not,
of itself, be expected to give rise to a successful claim of sex discrimination.
For example, the complaint included conduct that was described as
‘stirring’ by male colleagues, such as comments about her being
appointed Spokeswoman for the Commission – ‘Why isn’t it
“spokesperson”?’ and ‘Why isn’t there a
spokesman?’[88] This conduct
nevertheless formed part of a ‘hostile work environment’ that was
‘sufficiently pervasive to affect adversely the terms and conditions of
employment’.[89] The
respondent was ordered to pay damages of approximately $35,000.

Rich v Price Waterhouse Coopers

A more recent and widely publicised case, brought by Christina Rich against
accounting firm Price Waterhouse Coopers, included allegations of a
‘boys’ club culture’ that operated to discriminate against
women. Ms Rich claimed that her performance had been undervalued and her
promotion prospects limited because of this culture. The case was ultimately
settled,[90] but it remains an
interesting case to consider.

The allegations included conduct that would clearly amount to sexual
harassment such as forcibly undoing her bra and feeling her breasts and comments
referring to her breasts. However, Ms Rich also complained of being greeted with
a kiss by a senior partner, despite having asked him not to do so. She also
complained that she had been described as ‘scatty’,
‘emotional’ and ‘high maintenance’ as well as a range of
other comments that were said to impute to women that they are emotional, in
need of extra care, unable to determine for themselves what is best for their
career and use their physical attributes to
succeed.[91]

In another case brought in the Federal Court in
2005,[92] but also settled, a female
employee in a large bank alleged that she was denied a promotion because of her
sex and/or pregnancy and that the respondent’s workplace culture was
hostile to women and women with family responsibilities. Particulars of this
alleged culture included the prevalence of ‘girly’ magazines, the
display of pictures of scantily clad women, visits by employees to strip clubs
with and without clients and discussion of such visits during work, ‘male
only’ activities out of work hours, belittling of female employees and the
telling of offensive jokes within the earshot of female employees.

Commenting on the Rich case, Tony Wood and Tina Lavranos have observed
that

conduct alleged by senior female employees in recent
high-profile sex discrimination cases focuses on subtle behaviours in and around
the workplace which made them feel that they were not give an equal opportunity
to succeed. This may challenge the codes of behaviours within professional
workplaces which, in many workplaces, have been traditionally dominated and led
by men. Such behaviours include the ways in which relationships are established
within and outside the business that affect an employee’s career
progression, who they work for and which clients they
attract.
[93]

Is there a place for workplace banter?

Another issue relevant to workplace culture that has often arisen in sexual
harassment cases is where to draw a line between acceptable ‘banter’
amongst staff and sexual harassment.

In Beamish v Zheng,[94]
the applicant complained of a range of conduct by the respondent co-worker,
including sexual comments, an attempt to touch her breasts and an offer of $200
to have sex with him. In finding for the applicant, Driver FM stated:

The workplace in which Mr Zheng and Ms Beamish worked was a fairly rough and
tumble place in which lighthearted behaviour was tolerated. In the
circumstances, a certain amount of sexual banter could have been anticipated.
However, Mr Zheng’s conduct was persistent and went beyond anything that
could be described as lighthearted sexual banter. Ms Beamish’s reactions
to his conduct should have made clear that it was unwelcome. In the
circumstances, a reasonable person would have anticipated that Ms Beamish would
have been offended, humiliated or intimidated by Mr Zheng’s persistent
conduct. In particular, the attempt to touch her breasts was unacceptable and
the offer of money for sex was grossly
demeaning.[95]

It may be that the line is harder to draw in the abstract than it is in
practice. A feature of most reported cases concerning sexual harassment is that
it has been made clear to the harasser, directly or indirectly, that their
behaviour was unwelcome. It has been the continuation of the behaviour that has
resulted in the matter forming the subject of the complaint.

This is not to say, however, that a single incident cannot constitute
harassment. In Hall v
Sheiban
,[96] French J emphasised
that ‘circumstances, including the nature and relationship of the parties
may stamp conduct as unwelcome the first and only time it
occurs’.[97] This approach has
been adopted in other sexual harassment
cases.[98] Much will depend upon
context and, given the ‘reasonable person’ test for sexual
harassment, common sense is a useful guide.

(b) The RDA

A number of cases have considered workplaces
that are hostile to people of particular races. Similar to cases decided under
the SDA, the cases have considered both clear acts of racial discrimination and
vilification as well as other behaviour said to contribute to, or stem from, a
racially hostile work environment.

Kordos v Plumrose (Australia) Ltd

In Kordos v Plumrose (Australia)
Ltd
,[99] the applicant
complained that over a period of 5 years he was the victim of sustained racial
discrimination culminating in his dismissal. Mr Kordos, who was born in Greece,
worked as boner in a meatworks. He complained that he was referred to constantly
by other workers in the boning room in derogatory, abusive and racist terms,
including ‘wog’, ‘Greek bastard’ and ‘black Greek
wog’, as well as other similar expressions.

Mr Kordos also complained he was subjected to a range of disadvantageous
treatment because of his race, including in the allocation of work, the failure
to provide him with knives and the condition of the meat upon which he was
required to work (some of which was partially frozen and therefore harder to
cut).

The Court found that the cause of the disadvantageous treatment was
‘racial in origin’, having resulted from the antagonism that
developed in the workplace and was expressed in racial terms.

Mr Kordos’s dismissal stemmed from an incident in which he was alleged
to have threatened a fellow employee. The Court found that the incident was
created by the co-worker who then misrepresented and misreported it. The
co-worker was motivated by animosity that was the product of his ‘racist
attitudes and invective and the plaintiff’s refusal to passively accept
it.’ While the decision of management to dismiss Mr Kordos was not found
to be racially motivated, the dismissal was held to have come about as the
result of racial discrimination: ‘racial discrimination was an essential
element in the series of events that should collectively be seen as constituting
the circumstances of the
dismissal.’[100]

The employer was found both vicariously and directly liable for the
discrimination and ordered to pay $23,800 in damages. Duggan J held:

In my opinion, there is also direct liability. For the employer it was
‘unlawful to do any act... involving a distinction... based on race...
which had the purpose or effect of impairing the enjoying of the exercise of the
right... to just and favourable conditions of work...’.

The conditions of work presently under consideration could only be the
product of the conduct of the plaintiff’s fellow employees. It was through
them that the employer provided ‘conditions of work’. If the fellow
employees acted as I believe they did here, then prohibited conditions
prevailed. It follows that the employer has an active duty to ensure that an
individual employee is not subjected to acts that can be characterised as racial
discrimination, in so far as such acts affect the conditions of work. It is not
enough to remain aloof and ignore a situation which the employer does not
condone. To do so will make the employer liable in
damages.[101]

This approach was cited with approval in a number of decisions of HREOC
Commissioners, sitting at that time as hearing Commissioners prior to the
transfer of hearings to the Federal Court and Federal Magistrates
Court.[102]

In Surti v
Queensland
,[103] a case under
the SDA, Commissioner Bryce stated:

I accept that an employer can be directly responsible under the Act for the
creation or tolerance of a racially hostile work environment, which itself is
the product of individual acts of a racially discriminatory nature, whether or
not they are committed by persons under the direct control of the respondent.
This responsibility stems from the duty of an employer to take steps to ensure
that its workplace is free of all forms of racial discrimination of which the
employer is aware or should be aware. An omission to act can constitute
discriminatory conduct...[104]

Rugema v Gadsten Pty Ltd

In Rugema v Gadsten Pty
Ltd
,[105] an employee who was
of black African origin and appearance complained of prolonged racial abuse at
work, particularly by his supervisor, who was found to have called him, amongst
other things, a ‘black bastard’ and a ‘lazy black
bastard’. This was found to have caused a major depressive episode with
post-traumatic stress symptoms.
HREOC Commissioner Carter found that the
abuse constituted a breach of the general prohibition on racial discrimination
in s 9(1) of the RDA and the prohibition on racial vilification in s 18C. It
also breached the prohibition on discrimination in employment in s 15(1), on the
basis that the use of such terms resulted in Mr Rugema ‘having conditions
of work less favourable to others by reason of his race or ethnic origin’.
Damages of $55,000 were awarded.

Gama v Qantas Airways Ltd

In Gama v Qantas Airways Ltd (No
2)
[106] the applicant,
born in Goa, India, complained of a range of behaviour said to constitute racial
and disability discrimination.

At first instance, Raphael FM accepted that the making of remarks to the
applicant in the workplace that he looked like a ‘Bombay taxi
driver’ and walked up stairs ‘like a monkey’ denigrated him on
the basis of his race and therefore amounted to acts of race discrimination
under s 9. Other claims of racial discrimination in the denial of promotions and
training opportunities were rejected.

On appeal,[107] Qantas argued
that the racist remarks were not sufficient of themselves to constitute an act
of discrimination. Qantas submitted that as Raphael FM had rejected the
applicant’s other claims of race discrimination in employment and there
was no evidence of systemic racial bullying or harassment, there was no nexus
between the racist remarks and any adverse impact on the conditions of his
employment.[108]

The Full Federal Court unanimously rejected Qantas’ submission on this
point.[109] It held that the
making of a remark was an ‘act’ for the purposes of s
9.[110] The Court noted:

The denigration of an employee on the grounds of that person’s race or
other relevant attribute can properly be found to have the effect of impairing
that person’s enjoyment of his or her right to work or to just and
favourable conditions of
work.[111]

And further:

Undoubtedly remarks which are calculated to humiliate or demean an employee
by reference to race, colour, descent or national or ethnic origin, are capable
of having a very damaging impact on that person’s perception of how he or
she is regarded by fellow employees and his or her superiors. They may even
affect their sense of self worth and thereby appreciably disadvantage them in
their conditions of work. Much will depend on the nature and circumstances of
the remark.[112]

The Court accepted that the finding at first instance that the relevant
remarks adversely affected the applicant’s conditions of employment was
open to Raphael FM on the
facts.[113]

Qantas was found to be vicariously liable for each of these incidents on the
basis that the remarks were made by, or in the presence of, a supervisor of Mr
Gama and therefore condoned. This was unsuccessfully challenged on
appeal.[114]

^Top

6. Flexible working
conditions and family responsibilities

A significant cause of litigation under the SDA in recent years has been the
failure of employers to accommodate requests by women for flexible working
conditions to enable them to care for their
children.[115] While the cases
cannot be said to reflect a right to part-time work or flexible working
conditions, they do establish that employers need to seriously consider such
requests and will need a good reason to refuse them.

(a) Part-time work

Hickie v Hunt & Hunt

The seminal case on this issue is Hickie v Hunt &
Hunt
[116]
(‘Hickie’). In Hickie, the complainant had taken
maternity leave shortly after having been made a contract partner at the
respondent law firm. She complained of a range of less favourable treatment
during the period of her maternity leave and following her return to work on a
part-time basis. Relevantly, an area of her practice was removed from her on the
basis that it could not be managed working part-time.

Commissioner Evatt held:

Although no statistical data was produced at the hearing, the records
produced by Hunt and Hunt suggest that it is predominantly women who seek the
opportunity for part time work and that a substantial number of women in
the firm have been working on a part time basis. I also infer from general
knowledge that women are far more likely than men to require at least some
periods of part time work during their careers, and in particular a period of
part time work after maternity leave, in order to meet family responsibilities.
In these circumstances I find that the condition or requirement that Ms Hickie
work full-time to maintain her position was a condition or requirement likely to
disadvantage women.[117]

The condition to work full-time was also considered by Commissioner Evatt to
be unreasonable:

Hunt and Hunt have accepted that women should be able to work part time after
their maternity leave. In that case, they should have approached Ms
Hickie’s problem by seeking alternative solutions which would have enabled
her to maintain as much of her practice as possible. The firm should have
considered seriously other alternatives. Ms Hickie would return in a few weeks
and she was willing to work on urgent matters. Part of her practice could have
been preserved for her with other
arrangements.[118]

Mayer v Australian Nuclear Science & Technology
Organisation

In Mayer v Australian Nuclear Science & Technology
Organisation
,[119]
(‘Mayer’) the applicant wanted to work part-time following a period
of maternity leave. The refusal of the applicant’s request to work
part-time was found to be unreasonable and amounted to indirect
discrimination.[120]

Driver FM found that there was in fact part-time work available for Ms Mayer.
This work was ‘different work to that which the applicant had been doing,
but it was important work that the applicant was able to do and that needed to
be done’.[121] Consequently,
the respondent’s refusal to accommodate the applicant’s request for
part-time work was not reasonable:

Ms Bailey identified work that could properly occupy Ms Mayer’s time
until 3 January 2003 for two days each week. At a minimum, therefore, the
respondent should have offered Ms Mayer employment for two days per week for the
balance of her contract until 3 January 2003.

The work that Ms Mayer could have performed part-time would have been
discrete project work, rather than the performance of her previous functions. Ms
Mayer gave evidence of important projects that she could have assisted on. Ms
Bailey in her e-mail, stated that there were ‘many projects’ that Ms
Mayer could work on. In my view, with a little imagination the respondent could,
if it had wished to, found useful work for Ms Mayer to do for three days a week
until 3 January 2003.

... [T]he respondent’s effort to find part-time work for the applicant
was inadequate. The respondent’s refusal of part-time work for three days
per week was not reasonable.[122]

His Honour found, however, that it was not unreasonable for the employer to
reject the applicant’s proposal for job-sharing or working partly from
home:

It was reasonable for the respondent to refuse Ms Mayer’s proposal for
job sharing of her role, or for her to work partly from home... Ms Mayer’s
role required both a consistency of approach and regular interaction with other
staff. The effective performance of that role would have been problematic if Ms
Mayer had worked partly from home, or had shared her duties with another
employee. It was clear from Ms Mayer’s own evidence that she would not
have been able to work full-time from home while caring for her
child.[123]

(b) Flexible working conditions

The need for flexibility
in working conditions, including the need to take carer’s leave, has
arisen in a number of cases concerning the prohibition on direct discrimination
on the ground of family responsibilities.

Song v Ainsworth Game Technology

In Song v Ainsworth Game Technology Pty
Ltd
,[124] the applicant sought
to continue an informal practice she had maintained for nearly one year of
leaving the workplace for approximately twenty minutes (from 2.55pm to 3.15pm)
each afternoon to transfer her child from kindergarten to another carer.

The respondent sought to impose upon the applicant the condition that she
attend work from 9am until 5pm with a half hour for lunch between 12pm and 1pm.
When this condition was not accepted the respondent unilaterally changed the
applicant’s employment from full-time to part-time employment, purportedly
to allow the applicant to meet her family responsibilities.

Raphael FM found that the applicant was treated less favourably than a person
without family responsibilities who would have expected flexibility in starting
and finishing times and in the timing of meal
breaks.[125] His Honour further
found that the unilateral change to part-time employment constituted
constructive dismissal of the applicant and that one of the grounds for that
dismissal was the applicant’s family responsibilities in breach of s
14(3A) of the SDA.[126]

Evans v National Crime Authority

In Evans v National Crime
Authority,
[127] the applicant,
a single parent, was employed on contract as an intelligence analyst by the
National Crime Authority (‘NCA’). The applicant left her employment
before the end of her contract after being informed that her contract would not
be renewed. Prior to this, the applicant had a series of discussions with,
principally, the manager of investigations responsible for her team (‘the
manager’), in which concerns were expressed about her attendance
record and taking of personal leave (comprising carer’s leave and sick
leave – all within her leave entitlements).

Raphael FM found that the manager was unhappy with the concept of
carer’s leave[128] and that
the manager considered non-attendance for reasons of carer’s leave to be
damaging to that person’s employment prospects within the
NCA.[129] His Honour was also
satisfied that the manager’s grading of the applicant at her performance
review was influenced by his views as to her taking of personal
leave.[130] This in turn affected
the renewal of the contract.[131]

Raphael FM concluded that the applicant had been constructively dismissed on
the basis of her family responsibilities, contrary to s 14(3A) of the
SDA.[132] In finding direct
discrimination, his Honour compared the treatment of Ms Evans with that which
would have been afforded to an employee without family responsibilities who took
personal leave within his or her
entitlements.[133]

^Top

7. Reasonable
adjustments for people with disability

One of the significant issues arising under the DDA in workplace
discrimination cases has been the extent to which employers are subject to a
‘duty to accommodate’ the needs of employees with disability.

A number of cases have considered the issue in the context of the direct
discrimination provisions of the
DDA.[134] Following the decision
of the High Court in Purvis v New South
Wales
,[135] it appears settled
that a failure to provide accommodation for an employee with disability will not
constitute direct discrimination and it is not accurate to speak of a
positive ‘duty to accommodate’ a person’s disability.

This position may be altered as a result of proposed amendments to the DDA in
order to implement recommendations made by the Productivity Commission in its
2004 review of the Act.[136] These
recommendations included the introduction of a positive duty on employers and
others to make reasonable adjustments so as to remove barriers that prevent
people with a disability from working.

In the meantime, however, employers should not be misled into concluding that
the DDA, in its current form, does not require that reasonable adjustments be
made to meet the needs of employees with
disability.[137] In particular, it
is clear that:

  • it is unlawful to refuse to employ a person or to dismiss them because they
    would require assistance in carrying out the inherent requirements of the job,
    unless providing that assistance would impose ‘unjustifiable
    hardship’ on the employer; and
  • a failure to accommodate the needs of a person with disability may still
    constitute indirect disability discrimination if such failure is
    unreasonable.[138]

(a) The inherent requirements of the job

Section 15 of
the DDA makes discrimination in employment unlawful. The ‘inherent
requirements’ defence is contained in s 15(4) and provides that it is not
unlawful to refuse to employ or dismiss an employee on the ground of their
disability if

taking into account the person’s past training, qualifications and
experience relevant to the particular employment and, if the person is already
employed by the employer, the person’s performance as an employee, and all
other relevant factors that it is reasonable to take into account, the person
because of his or her disability:

(a) would be unable to carry out the inherent requirements of the particular
employment; or

(b) would, in order to carry out those requirements, require services or
facilities that are not required by persons without the disability and the
provision of which would impose an unjustifiable hardship on the employer.

The ‘inherent requirements’ of the particular employment refers
to those functions that are essential to the position. In Qantas Airways Ltd
v Christie
,[139] Brennan CJ
stated:

The question whether a requirement is inherent in a position must be answered
by reference not only to the terms of the employment contract but also by
reference to the function which the employee performs as part of the
employer’s undertaking and, except where the employer’s undertaking
is organised on a basis which impermissibly discriminates against the employee,
by reference to that
organisation.[140]

Gaudron J suggested that:

A practical method of determining whether or not a requirement is an inherent
requirement, in the ordinary sense of that expression, is to ask whether the
position would be essentially the same if that requirement were dispensed
with.[141]

It has been held that, when read as a whole, the defence in s 15(4) requires
that employer show that the employee (or prospective employee) is unable to
carry out the requirements of the position even if provided with services or
facilities that can be provided without imposing an unjustifiable hardship on
the employer. In X v
Commonwealth
,[142] McHugh J
held:

Section 15(4) must be read as a whole. When it is so read, it is clear enough
that the object of the sub-section is to prevent discrimination being unlawful
whenever the employee is discriminated against because he or she is unable
either alone or with assistance to carry out the inherent requirements of the
particular employment. If the employee can carry out those requirements with
services or facilities which the employer can provide without undue hardship, s
15(4) does not render lawful an act of discrimination by the employer that falls
within s 15. For discrimination falling within s 15 to be not unlawful,
therefore, the employee must have been discriminated against because he or she
was:

(a) not only unable to carry out the inherent requirements of the particular
employment without assistance; but was also

(b) able to do so only with assistance that it would be unjustifiably harsh
to expect the employer to
provide.[143]

This does not mean that an employer is obliged to change the nature of the
particular job, or its inherent requirements, to accommodate a person with a
disability. In X v Commonwealth, Gummow and Hayne JJ (with whom Gleeson
CJ and Callinan J agreed) observed:

the requirements that are to be considered are the requirements of the
particular employment, not the requirements of employment of some
identified type or some different employment modified to meet the needs of a
disabled employee or applicant for
work.[144]

However, McHugh J in X v Commonwealth noted that it is for the trier
of fact to determine whether or not a requirement is inherent in a particular
employment. A respondent is not able to organise or define their business so as
to permit discriminatory
conduct.[145] While his Honour
suggested that ‘appropriate recognition’ must be given ‘to the
business judgment of the employer in organizing its undertaking and in regarding
this or that requirement as essential to the particular
employment’,[146] the onus
remains on an employer to demonstrate that an employee’s disability
(appropriately accommodated) prevents them from performing the inherent
requirements of the position (as opposed to other functions that which are not
essential parts of the job).

(b) Indirect discrimination

Failure to provide reasonable
adjustments for the needs of an employee with a disability may also amount to
indirect discrimination. For example, in Daghlian v Australian Postal
Corporation
,[147]
the respondent had a ‘no chair’ policy, which prohibited employees
from using stools behind the retail counter. This was found to impose a
‘requirement or condition’ that the applicant not be seated at the
retail counter during her work
hours.[148] The applicant had
physical disabilities which limited her ability to stand for long periods. This
was held to constitute indirect discrimination.

In finding that the requirement or condition was not reasonable, Conti J
considered a wide range of factors, including:

  • health and safety issues (it was claimed by the respondent that the presence
    of stools created a danger of tripping for other staff);
  • the needs of the applicant (identified in medical and ergonomic reports) to
    assist her to work satisfactorily and efficiently in the performance of her
    duties, notwithstanding her physical disabilities;
  • the applicant’s status as a competent and conscientious employee and a
    dutiful member of the counter staff;
  • the desire of the respondent to create a ‘new image’ for its
    post shops; and
  • the ability for the needs of the applicant to be accommodated through
    structural changes to the counter
    area.[149]

^Top

8. Where does the
workplace end?

As noted earlier, all of the Federal discrimination Acts contain provisions
that make an employer vicariously liable for the conduct of their employees in
particular contexts. Under the SDA, for example, vicarious liability extends to
those acts done ‘in connection with’ the employment of an employee
or with the duties ‘of an agent as an agent’ (s 106(1)). This has
raised some difficult questions in relation to sexual harassment by one employee
of another employee when it occurs away from the normal workplace.

Leslie v Graham

In Leslie v Graham[150]
(‘Leslie’), sexual harassment was held to have occurred in
the early hours of the morning in a serviced apartment that the complainant and
another employee were sharing whilst attending a work related conference. In
considering whether the conduct constituted sexual harassment of one employee by
a fellow employee, Branson J[151]
noted that when the harassment occurred the employment relationship of the two
people involved was a continuing one, they were sharing the apartment in the
course of their common employment and the apartment was accommodation provided
to them by their employer for the purpose of attending a conference. Her
Honour concluded that the employer was therefore vicariously liable pursuant to
s 106(1) of the SDA.

South Pacific Resort Hotels Pty Ltd v Trainor

In South Pacific Resort Hotels Pty Ltd v
Trainor
[152]
(‘Trainor’), the applicant was employed by the respondent
in its hotel on Norfolk Island. The applicant resided in staff accommodation
made available by the respondent, with her room being adjacent to the room of a
fellow employee, Mr Anderson. The applicant made two allegations of sexual
harassment against Mr Anderson. Both incidents occurred in the early hours of
the morning in the applicant’s room, with one of the incidents occurring
after a staff function.

The Full Federal Court accepted that the harassment on each occasion had
occurred ‘in connection with’ Mr Anderson’s employment,
notwithstanding that it had occurred whilst both he and the applicant were
off-duty and were not performing any function in relation to their employment.
In the joint judgment of Black CJ and Tamberlin J, their Honours emphasised that
the expression ‘in connection with the employment’ in s 106(1) was
‘a broad one of practical
application’.[153] Their
Honours also applied the decision in Leslie, noting that the facts in
Trainor suggested an even closer link to the employment. Pursuant
to the employer’s policies, visitors were not allowed in the staff
accommodation. It was therefore only by reason of their common employment that
both Mr Anderson and the applicant happened to be
there.[154]

Kiefel J also emphasised the beneficial objects of the SDA, including the
object described in s 3(c) of the SDA ‘to eliminate, so far as possible,
discrimination involving sexual harassment in the
workplace’.[155] Her Honour
concluded on the facts that the relevant conduct had occurred ‘between two
employees in accommodation provided by the employer as an incident of
employment’.[156]
Furthermore, the employees’ rooms were ‘in close proximity to each
other and they were
accessible’[157] and the
circumstances created by the employer had allowed the incident to occur in the
early hours of the morning.[158]
Finally, her Honour noted that the second incident had occurred following a
staff function at which Mr Anderson had consumed
alcohol.[159] For all of these
reasons, her Honour accepted that Mr Anderson’s conduct on each occasion
had occurred in connection with his
employment.[160]

Lee v Smith

The broad scope of s 106(1) was again confirmed in Lee v
Smith
[161] in which the
Commonwealth (Department of Defence) was held vicariously liable for the actions
of its employees who subjected the applicant, a civilian administrator at a
Cairns naval base, to sexual harassment, discrimination, victimisation and
ultimately rape by the first respondent.

Ms Lee was sexually harassed over a period of several months by naval officer
Smith. Smith repeatedly asked Lee for sex, intimidated her with inappropriate
and offensive comments, and made attempts to grope her. The Court also found
that pornography was displayed in the workplace. After Lee demanded that his
harassment cease, Smith stopped harassing her for about two weeks.

Around this time, Lee and Smith attended an after-work dinner party at the
home of two colleagues. Lee became intoxicated at the dinner and passed out.
When she woke up the next day, she was in Smith’s house and he was raping
her.

Federal Magistrate Connolly held that the rape had occurred ‘in
connection with’ the first respondent’s employment, primarily on the
basis that:

...the rape was the culmination of the earlier incidents of sexual harassment
directly in the workplace.[162]

Consequently, his Honour held, the first respondent’s conduct:

...was an extension or continuation of his pattern of behaviour that had
started and continued to develop in the workplace he shared with the Applicant.
The nexus with the workplace was not
broken.[163]

Connolly FM further held that the rape:

occurred between two current employees and in my view it arose out of a work
situation. The applicant was invited to attend after-work drinks by a fellow
employee and indeed the invitation was issued at the behest of the first
respondent. Further, the rape itself was the culmination of a series of sexual
harassments that took place in the workplace and would not have occurred but for
the collusion of ...two fellow employees who made concerted efforts over a
period of time to make arrangements for the applicant and first respondent to
attend dinner at their residence. The applicant’s attendance was clearly
because of the original after-works drinks invitation and it was likely that the
invitation was provided in that form to ensure the applicant’s attendance.
There is no doubt that it not only had the potential to adversely affect the
working environment but it did
so...[164]

His Honour also held that the applicant had been given no relevant training
in sexual harassment. Such training, his Honour held, may have prevented matters
from escalating to the point of the rape by assisting the applicant to report
the earlier sexual harassment within the
workplace.[165] Also relevant to
the finding that ‘all reasonable steps’ had not been taken was the
display of pornography in the workplace. Connolly FM held that the display of
such material ‘may well create an impression regarding the prevailing
workplace culture and thereby diminishing the confidence in the formal complaint
procedures and
policies’.[166]

Comment

As the above discussion illustrates, the Federal authorities have adopted a
consistently broad approach to assessing when off-duty conduct is ‘in
connection with the employment’ for the purposes of attaching vicarious
liability to the employer.[167]
This has been on the basis that such an approach reflects the broad language
Parliament has used in that section and is an approach that best advances the
beneficial objects of the SDA.

In particular, the Federal authorities have not confined the scope of s
106(1) to conduct occurring whilst employees are ‘on-duty’ or on
work premises. As the decision in Lee highlights most clearly, provided
that the off-duty sexual harassment can be seen as an extension or culmination
of events occurring within the workplace, the nexus requirement under s 106(1)
will be met.

However, whilst the scope of vicarious liability under the
RDA[168] is expressed in similar
terms to the SDA, the relevant provisions under the DDA and ADA may be narrower.
These provisions adopt language more closely aligned with vicarious liability at
common law, limiting vicarious liability to conduct of a director, servant or
agent of a body corporate ‘within the scope of his or her actual or
apparent authority’.[169]
However, the reach of the vicarious liability provisions under the DDA and ADA
in the context of off-duty conduct, or conduct occurring away from the normal
workplace, has yet to be considered by the courts.

^Top

9. Dealing with
complaints of discrimination and harassment

How an employer deals with complaints of discrimination and harassment is
very important. On a practical level, a timely and appropriate response to a
complaint is likely to avoid further unlawful acts (or the development of a
‘hostile work environment’) and may minimise the harm caused by way
of distress or humiliation.

The nature of an employer’s response is also relevant in determining
vicarious liability. It will provide evidence of the manner in which the
employer implements its policies and procedures to avoid discrimination –
a matter relevant to determining whether the employer has taken ‘all
reasonable steps’ to avoid discrimination. As Driver FM observed in
Johanson v Blackledge: ‘It is not enough to have a policy. One has
to apply it.’[170]

It is also important to note the victimisation provisions in the
discrimination Acts. ‘Victimisation’ in this context refers to
subjecting a person to a disadvantage by reason of them, amongst other things,
making a complaint of discrimination, providing information in connection with a
complaint or attending a conference held in connection with a complaint (or
proposing to do any of those things).

All of the Acts make victimisation an
offence.[171] Victimisation is
also included in the definition of ‘unlawful
discrimination’.[172] It can
therefore also be the subject of a complaint to HREOC and proceedings in the
Federal Court and Federal Magistrates Court seeking any of the remedies
ordinarily available for unlawful discrimination
matters.[173]

A complaint of victimisation was a feature of the case brought by Christina
Rich against Price Waterhouse Coopers, discussed above. Ms Rich alleged that
following her complaints of discrimination and harassment she was, amongst other
things, not allowed to meet with clients, directed to go on stress-related leave
and had clients directed to other partners.

^Top

10. Conclusion

Providing a discrimination-free workplace raises a number of challenges for
employers and employees. It may require

  • Changing workplace cultures and confronting unacceptable practices. Such
    practices may range from harassment and bullying to more subtle behaviour that
    undermines and excludes people from certain racial or ethnic groups, people with
    disability and women.
  • Re-thinking how business is done to accommodate the reasonable needs of
    workers with family responsibilities and workers with disability.
  • Developing policies to protect workers from all forms of discrimination and
    harassment.
  • Ensuring that discrimination and harassment policies are enforced, that
    staff are properly trained in those polices and that complaints are dealt with
    appropriately.

HREOC has developed a number of resources to provide
practical information for employers to ensure that Australian workplaces are
free from discrimination and harassment, such as the
Good practice, good business
guide[174] and the Sexual
Harassment Code of
Practice
.[175] Employers can
use these resources as part of internal induction sessions, or as a useful
starting point when developing internal policies in the workplace. Further
information is available via HREOC’s website: www.humanrights.gov.au

The advantages of rising to the challenges go, of course, well beyond
avoiding legal liability: a discrimination-free workplace is a diverse and
healthy one that makes the most of the talents of its staff and allows them to
contribute to the success of an organisation.

^Top


[0] This paper has been
prepared by the Legal Section of the Human Rights and Equal Opportunity
Commission (‘HREOC’) for presentation at seminars to promote the
2008 edition of Federal Discrimination Law and it draws from that
publication. Federal Discrimination Law provides a comprehensive analysis
of cases decided in the federal unlawful discrimination jurisdiction and is
available free of charge in hard copy and online via the HREOC website: www.humanrights.gov.au/legal/FDL.
The online version (‘FDL Online’) is periodically updated and
users can register to receive notification of updates via
email.
[1] See Rees, Lindsay and
Rice, Australian Anti-Discrimination Law (2008), 1; Chris Ronalds,
Discrimination Law and Practice (3rd ed, 2008),
3.
[2] Section
15.
[3] Sections 9 and 10 contain
general prohibitions on racially discriminatory acts and laws, ss 11-15 provide
for specific prohibitions in areas of public
life.
[4] See
Anti-Discrimination Act 1977 (NSW); Equal Opportunity Act 1984
(SA); Equal Opportunity Act 1984 (WA); Anti-Discrimination Act 1991
(Qld); Anti-Discrimination Act 1991 (ACT); Anti-Discrimination Act
1992
(NT); Equal Opportunity Act 1995 (Vic); Anti-Discrimination
Act 1998
(Tas).
[5] See RDA ss
9 and 15; SDA s 14; DDA s 15; ADA s 18. Note that the specific prohibition on
discrimination in employment in s 15 of the RDA is not as comprehensive as those
in the other Acts. However, the effect of s 9 of the RDA, which contains a
unique general prohibition on discriminatory conduct, can be expected to produce
the same (indeed, potentially more extensive) protection against discrimination
in all aspects of employment.
[6]
See RDA s 16; SDA s 86; DDA s 34; ADA s
50.
[7] Note that prohibitions at
the State and Territory level are more extensive, covering grounds such as
sexuality/homosexuality, carer’s responsibility, criminal record, trade
union activity and political opinion.

[8] Note that descent is not
included in the grounds covered by the specific prohibition against
discrimination in s 15 of the RDA but is included in the general prohibition in
s 9.
[9] Including the race,
colour or national or ethnic origin of a person’s associate: see s
15.
[10] See s 14(3A). Note,
however, that the SDA prohibits only direct family responsibilities
discrimination (s 7A) and s 14(3A) only makes such discrimination unlawful in
dismissal from employment (including constructive dismissal: Song v Ainsworth
Game Technology Pty Ltd
[2002] FMCA
31).
[11] Including the
disability of a person’s associate: see s
15.
[12] See RDA s 9(1); SDA ss
5(1), 6(1), 7(1), 7A; DDA ss 5, 7-9 ; ADA s
14.
[13] See RDA s 9(1A); SDA ss
5(2), 6(2), 7(2), 7B, 7C; DDA s 7; ADA s
15.
[14] Section
28B.
[15] Section
28A.
[16] Section
35.
[17] Section 18C RDA; see
exemptions in s 18D.
[18] See RDA
s 8(1); SDA s 7D; DDA s 45; ADA s 33. Note that the ADA provision concerning
‘positive discrimination’ is much broader than the other
‘special measures’
provisions.
[19] See Bruch v
Commonwealth
[2002] FMCA
29.
[20] See Jacomb v
Australian Municipal Administrative Clerical and Services Union
[2004] FCA
1250.
[21] Section 8(2) contains
an exemption for wills and charitable benefits that confer benefits on people of
a particular race and ss 12(3) and 15(5) contain exemptions for decisions
relating to accommodation and employment by the residents of a dwelling. There
is also a ‘free speech’ exemption to the racial hatred provisions: s
18D.
[22] See generally Part II
Division 4.
[23] Section
30(2)(b).
[24] Section
30(2)(c).
[25] Section
30(2)(d).
[26] Section
30(2)(e).
[27] Section
30(2)(g).
[28] Section
30(2)(f).
[29] See generally Part
2 Division 5.
[30] Section
15(4).
[31] Section
16(3).
[32] Section
17(2).
[33] Section
18(4).
[34] Section
19(2).
[35] Section
21(2).
[36] See s 15(4)(b),
16(3)(b), 17(2)(b) and 18(4)(b) and X v Commonwealth (1999) 200 CLR 177,
190 [39] (McHugh J), with whom Gummow and Hayne JJ agreed (and with whom, in
turn Gleeson CJ and Callinan J agreed) on this point, 208-9
[104].
[37] Section
25.
[38] Section
41A.
[39] Section
44.
[40] Section
55.
[41] Section
44.
[42] See
http://www.humanrights.gov.au/legal/exemptions/index.html.
[43]
See Division 4 of Part II and Part IIC of the Human Rights and Equal
Opportunity Commission Act 1986
(Cth) (‘HREOC
Act’).
[44] Opened for
signature 25 June 1958, 362 UNTS 31 (entered into force for Australia 15 June
1974).
[45] See HREOC Act s
3.
[46] See s 3 HREOC Act. Note
that additional grounds of ‘discrimination’ were added in accordance
with para (b) of the definition in s 3 by the Human Rights and Equal Opportunity
Commission Regulations 1989, which commenced on 1 January
1990.
[47] For further
information about how complaints are resolved by HREOC, see:
http://www.humanrights.gov.au/complaints_information/index.html.

[48] See generally Part IIB of
the HREOC Act.
[49] Section
46PO(4) HREOC Act.
[50] Sections
11(1)(f)(ii), 46 HREOC Act.
[51]
Section 29(2)(b),(c)
[52]
Examples of HREOC reports concerning ILO 111 discrimination can be found at:
http://www.humanrights.gov.au/legal/HREOCA_reports/index.html.

[53] See RDA ss 9 and 15; DDA s
15; ADA s 18. As noted above, the general prohibition on acts of racial
discrimination under s 9(1) of the RDA will also apply to discriminatory acts of
co-employees and will not require proof that a person was acting or purporting
to act on behalf of an
employer.
[54] See R v Toohey;
Ex parte Attorney-General (NT)
 (1980) 145 CLR 374, 386 (Stephen, Mason,
Murphy, Aickin JJ).
[55] See s
14(1): ‘It is unlawful for an employer to discriminate...’
(emphasis added).
[56] Section
28B(2).
[57] Section
35(2).
[58] Section 18C RDA; see
exemptions in s 18D.
[59]Korczak v Commonwealth (Department of Defence) Unreported, HREOC,
Commissioner Innes, 16 December 1999 (extract at (2000) EOC
¶93-056).
[60] Sections 18A,
18E RDA; s 106 SDA.
[61] Section
123 DDA; s 57 ADA.
[62] Rees,
Lindsay and Rice, above n 1,
653.
[63] Sections 18A(2),
18E(2).
[64] Section
106(2).
[65] Sections 123(2),
(4).
[66] Sections 57(2),
(4).
[67] Under the SDA see
Cooke v Plauen Holdings Pty Ltd [2001] FMCA 91, [35]; under the DDA see
Vance v State Rail Authority [2004] FMCA 240,
[56].
[68]
[2004] FMCA 240,
[54]-[58].

[69]
Ibid
[56].

[70]
[2004] FMCA 240, [56] citing Korczak v Commonwealth of Australia (2000)
EOC ¶93-056.

[71]
Ibid [55].
[72]Boyle v Ozden
(1986) EOC 92-165; Johanson v Blackledge
(2001) 163 FLR 58.
[73]Johanson v Blackledge (2001) 163 FLR 58, 81
[101].
[74] Ibid. See also
McAlister v SEQ Aboriginal Corporation [2002] FMCA 109, [143]; Cooke v
Plauen Holdings Pty Ltd
[2001] FMCA 91, [37].

[75]Gilroy v Angelov
(2000) 181 ALR 57.
[76]Johanson v Blackledge (2001) 163 FLR 58, 82
[103].
[77]Gilroy v
Angelov
(2000) 181 ALR 57, 75
[100].
[78]Johanson v
Blackledge
(2001) 163 FLR 58, 82
[105].
[79]
Ibid.
[80] Ibid 81 [101];
McAlister v SEQ Aboriginal Corporation [2002] FMCA 109, [143]; Cooke v
Plauen Holdings Pty Ltd
[2001] FMCA 91,
[37].
[81]Aleksovski v
Australia Asia Aerospace Pty Ltd
[2002] FMCA 81,
[88].
[82]Johanson v
Blackledge
(2001) 163 FLR 58, 80-81
[99].
[83] [2000] FMCA
2.
[84] Ibid
[74].
[85] (1985) EOC
¶92-127, a case decided under the Anti-Discrimination Act 1977
(NSW).
[86] Ibid
76,280.
[87]
Ibid.
[88] Ibid
92-127.
[89]
Ibid.
[90] See Susannah Moran,
‘PWC, Rich strike deal on harassment claims’, The Australian,
28 March 2008.
[91] See Jennifer
Sexton, ‘Case two: Christina Rich vs Price Waterhouse Coopers’,
The Australian, 25 November 2005; Tony Wood and Tina Lavranos,
‘Federal Court judge suggests jury to decide sex discrimination claim
worth $10 million’,
http://www.freehills.com.au/publications/publications_5814.asp.
[92]
Chanelle Hughes v Royal Bank of Canada
NSD2160/2005.
[93] Tony Wood and
Tina Lavranos, ‘Federal Court judge suggests jury to decide sex
discrimination claim worth $10 million’,
http://www.freehills.com.au/publications/publications_5814.asp.
[94]
[2004] FMCA 60.
[95] Ibid
[16].
[96]
(1989) 20 FCR 217.
[97]
Ibid.
[98] See, for example, the
judgement of Driver FM in Cooke v Plauen Holdings Pty Ltd [2001] FMCA 91,
[25], applying Hall v Sheiban (1989) 20 FCR 217 and Leslie v Graham
(Unreported, HREOC, Commissioner Innes, 21
July).
[99]Kordos v
Plumrose (Australia) Ltd
(1989) EOC
¶92-256.
[100] Ibid
77,514.
[101]
Ibid.
[102] For further
information concerning the transfer of hearings to the Federal Court and Federal
Magistrates Court, see Federal Discrimination Law pp
7-9.
[103] [1993] HREOCA 3 (22
February 1993).
[104] See also
D'Souza v Geyer and Directorate of School Education Victoria [1996]
HREOCA 4 (25 March 1996).

[105] [1997] HREOCA 34 (26
June 1997).
[106] [2006] FMCA
1767. For further discussion of this case see Christine Fougere,
‘Vicarious liability for race and disability discrimination in the
workplace’, (2007) 45(3) Law Society Journal, 37.

[107] [2008] FCAFC
69.
[108] Ibid
[73].
[109] Ibid [76] (French
and Jacobson JJ, with whom Branson J generally agreed,
[122]).
[110] Ibid.

[111] Ibid [77].

[112] Ibid
[78].
[113]
Ibid.
[114] Ibid
[79]-[83].
[115] For a detailed
discussion of these and related issues, see Smith and Riley,
‘Family-friendly Work Practices and The Law’ (2004) 26 Sydney Law
Review
395.
[116]Hickie
v Hunt & Hunt
[1998] HREOCA 8 (extract at (1998) EOC
92-910).
[117] Ibid
[6.17.10].
[118]
Ibid.
[119] [2003] FMCA
209.
[120] A similar result was
reached in Escobar v Rainbow Printing Pty Ltd (No 2) [2002] FMCA 122. A
different approach to the issue was taken in Kelly v TPG Internet Pty Ltd
(2003) 176 FLR 214, but the reasoning in that matter has been criticised and
not followed: see Howe v Qantas Airways Ltd (2004) 188 FLR 1,
[119]-[126].
[121] Ibid
[75].
[122] Ibid
[75]-[76].
[123] Ibid
[77].
[124] [2002] FMCA
31.
[125] Ibid
[72].
[126] Ibid
[83].
[127] [2003] FMCA 375.

[128] Ibid
[88].
[129] Ibid
[89].
[130] Ibid
[88].
[131] Ibid [93].

[132] [2003] FMCA 375,
[106].
[133] Ibid [108].
Raphael FM’s finding of discrimination on the ground of family
responsibilities was upheld on appeal by Branson J in Commonwealth v
Evans
[2004] FCA 654.
[134]
See, for example, AJ & J v A School (No 1) (1998) EOC 92-948; AJ
& J v A School (No 2)
Unreported, HREOC, Commissioner McEvoy, 10 October
2000; Commonwealth v Humphries(1998) 86 FCR
324.
[135] (2003) 217 CLR 92,
127 [104] (McHugh and Kirby JJ), 159 [217]-[218] (Gummow, Hayne and Heydon JJ
with whom Callinan J agreed, 175
[273]).
[136] Seehttp://www.attorneygeneral.gov.au/www/ministers/robertmc.nsf/AllDocs/61…
[137]
See particularly the comments of the Full Federal Court in Catholic Education
Office v Clarke
(2004) 138 FCR 121, [87]-[93]. For a general discussion of
the obligations of employers under the DDA, see the material available via the
Disability Rights pages of the HREOC website, particularly at: http://www.humanrights.gov.au/disability_rights/faq/Employment/employment_faq_1.html#obligations.
[138] Practical guidance on
removing barriers to the employment of people with disability can be found in
the final report of HREOC’s National Inquiry into Employment and
Disability:
http://www.humanrights.gov.au/disability_rights/employment_inquiry/index.htm.
[139]
(1998) 193 CLR
280.

[140]
Ibid 284
[1].

[141]
Ibid 295 [36].

[142]
(1999) 200 CLR
177.
[143]
Ibid 190 [39]. Gummow and Hayne JJ (with whom Gleeson CJ and Callinan J agreed)
noted their agreement with McHugh J on this point, 208-209 [104].

[144]
(1999) 200 CLR 177, 208
[102].

[145]
Ibid 189-190 [37]. See also Gummow and Hayne JJ (with whom Gleeson CJ and
Callinan J agreed) who noted that ‘the reference to “inherent”
requirements would deal with some, and probably all, cases in which a
discriminatory employer seeks to contrive the result that ... disabled [people]
are excluded from a job’ (208
[102]).

[146]
Ibid 189
[37].

[147]
[2003] FCA 759.

[148]
[2003] FCA 759,
[110]-[111].
[149]
Ibid [111].

[150] [2002]
FCA 32.
[151] Ibid
[71].
[152]South Pacific
Resort Hotels Pty Ltd v Trainor
(2005) 144 FCR
402.
[153] Ibid 410
[41].
[154] Ibid 409
[40].
[155] Ibid 413-4
[62]-[64].
[156] Ibid 416
[74].
[157] Ibid. It is noted
that her Honour’s reference to the rooms being ‘accessible’
would appear to be a reference to the finding at first instance that the
applicant was unable to lock her room. This had contributed to the harassment
occurring because on each occasion Mr Anderson had let himself into the
applicant’s room uninvited. See Trainor v South Pacific Resort Hotels
[2004] FMCA 371 at [36]-[38],
[74]
[158]
Ibid.
[159]
Ibid.
[160]
Ibid.
[161] [2007] FMCA 59. For
a discussion of this case, see Alex Newton, ‘Beyond the common law:
employer held responsible for rape by employee - Is this a new frontier in
vicarious liability?’ (2007) 45(6) Law Society Journal
38.
[162] Ibid
[206]
[163] Ibid
[206].
[164] Ibid
[203].
[165] Ibid [199]:
‘It may well have been the case, had the Applicant had the opportunity of
attending such a course, she may well have been better equipped to deal with the
earlier pornography in the workplace and by reporting those matters, it may have
been that what occurred during and soon after the course could have been avoided
and ultimately, the rape itself could have been
avoided.’
[166] Ibid
[198].
[167] See also
McAllister v South East Queensland Aboriginal Corporation [2002] FMCA
109; Cross v Hughes & Anor (2006) 233 ALR 108; Frith v The
Exchange Hotel & Anor
[2005] FMCA 402. For a detailed survey of Federal
sexual harassment cases dealing with vicarious liability, see P Easteal and S
Saunders, ‘Interpreting Vicarious Liability with a Broad Brush in Sexual
Harassment Cases’, in press Australian Law Journal (June, 2008).

[168] RDA, s 18A, s
18E.
[169] DDA, s 123; ADA s
57.
[170] (2001) 163 FLR 58, 82
[105].
[171] See RDA s 27; SDA
s 52; DDA s 42; ADA s 51.
[172]
Section 3 HREOC Act.
[173] See
s 46PO(4).
[174] Available at:
http://www.humanrights.gov.au/info_for_employers/index.html

[175] Available at: http://www.humanrights.gov.au/sex_discrimination/workplace/code_practice/index.html