11.1 Discrimination

discrimination

the unfavourable treatment of a person based on a certain attribute (e.g. age, gender, disability, religion, etc.) and can be direct or indirect

attribute

a quality, feature, or characteristic of a person, such as race, gender identity, etc.

direct discrimination

when an assumption is made about what a person can or cannot do because of a personal characterisitic or attribute

indirect discrimination

when there is a rule or policy that is the same for everyone, but it has an unfair effect on some people who share a particular attribute

vilify (vilification)

behaving in a way that encouages or provokes hated, serious comtempt or severe ridicule of a person or group on their race or religion

victorian civil and administrative tribunial (VCAT)

tribunial that deals with disputes relating to a range of civil issues heard by various lists

purposes of anti-discrimination laws (5)

• people’s right to feel safe in various social setting including at work, school and on the sporting field

• people’s right to feel accepted and part of the community

• people’s right to equality

• people’s rights imposing penalties on people who engage in unlawful conduct

• people’ right to seek compensation for being discriminated against

Element of discrimination

• the discrimination was based on a certain attribute

• the discrimination took place in a particular area or activity

• The discrimination caused harm or less favourable treatment

The discrimination was based on a certain attribute

if someone is hurtful to another simply because they do not like them

the treatment is not based on an attribute and unlikely to be discrimination

the discrimination took place in a particular area of activity

if one person is discriminated against by another in a private home, then the person who is discriminated against will not be able to do much

places where a person is protected from discrimination (9)

• job application

• employment

• membership of clubs

• occupational qualifications

• education

• sport

• provision of accommodation

• sale of property

• membership of unions

The discrimination caused harm or less favourable treatment

if a person has been discriminaed against on the basis of a particular attribute and in a particular area or activity, they must establish the treatment caused them harm or less favourble treatment

limitation of actions in a discrimination case under victorian statute

VEOHRC may not provide dispute resolution services if the discrimination occurred more than 12 months before the person complained

limitation of actions in a discrimination case under commonwealth statute

(AHRC) may terminate a complain if it was lodged more than 6 months after the alleged discrimination took place

defences to discrimination (4)

• an exception allowed lawful discrimination

• an exemption from discrimination laws applied

• inherent requirements

• unjustiable hardships

an exception allowed lawful discrimination

• an educational authority can set and enforce reasonable standards of dress, behaviour, and appearance for students

• a club can exclude a person from membership on the basis of that person’s sex if membership of the club is only avaliable only to people of the opposite sex

• a sporting club can exclude a person of another sex from participating in a competitive sporting activity if strength, stamina, or physique is relevant

an exemption from discrimination laws applied

some individuals and groups are exempt from discrimination laws:

• if necessary for the person to comply with their religion

• a person can provide benefits

Inherant Requirements

• this defence only applied to allegations of discrimination in employment

• an employer can argue that a person, because of age or disability, cannot carry out the inherant requirements (essential duties) of the job

unjustifiable hardship

• only avaliable to employers

• on the basis that working arrangement would cause ‘unjustifiable hardship’ to the employer - employee would be hard to accommodate

possible remedies (4)

• damages

• injunction

• apology

• undertake equal oppourtunity training

possible impacts of discrimination to the plaintiff (4)

• public humiliation

• loss of oppourtunity

• inconvience

• effect on mental health

possible impacts of discrimination to the defendant (3)

• public humiliation

• loss of business

• inconvenience