INTRODUCTION

The Equal Opportunity Act 2010 (“Equal Opportunity Law”) imposes a new paradigm on the obligations of employers and organisations. These groups must demonstrate that they do comply with the provisions of the Equal Opportunity Law otherwise; they are liable under Equal Opportunity Law.

The Commission can investigate an employer or organisation if it becomes aware of allegations of discrimination, without the need for anyone to bring a dispute.

Smart and risk averse employers and organisations will take immediate action to ensure they have appropriate policies, procedures and risk strategies in place that ensure ongoing compliance with the Equal Opportunity Law.  

RECOMMENDATION

It is necessary to implement appropriate policies, procedures, and strategies that ensure compliance, or to modify existing compliance programs. For an appointment, call 03 9646 0344.
 

EQUAL OPPORTUNITY LAWS

The Equal Opportunity Law provides:

1)    A duty to provide reasonable adjustments for people with impairments and disabilities in employment, education, and provision of goods and services to help the person with a disability to perform the job or access education and goods and services;

2)    A duty to eliminate discrimination, which obliges organisations covered by the law to take proactive, reasonable, and proportionate measures to eliminate discrimination, sexual harassment, and victimisation;

3)    Protection to volunteers and unpaid workers from sexual harassment;

4)    Clarification of the exceptions for religious bodies, which allows them to discriminate against people based on sex, marital status, gender identity, and sexuality where discrimination is necessary to conform to religious belief.  

DIRECT DISCRIMINATION

Direct discrimination occurs if a person treats, or proposes to treat, a person with a protected attribute unfavourably because of that attribute. The Commission looking at a complaint will consider whether certain treatment was unfavourable to the person claiming discrimination, focusing on the consequences of the treatment on the person claiming direct discrimination because of a protected attribute.  

INDIRECT DISCRIMINATION

Indirect discrimination will occur where a person imposes, or proposes to impose, a requirement, condition, or practice that has, or is likely to have, the effect of disadvantaging people with a protected attribute, and that is not reasonable. The new test for indirect discrimination:

• Removes the requirement that a person must demonstrate that he or she cannot comply with a requirement, condition or practice, and instead requires the person to show that the requirement, condition or practice causes, or is likely to cause disadvantage;
• Removes the requirement that the person claiming indirect discrimination must establish that a substantially higher proportion of people without the attribute that he or she has can comply with the requirement, condition or practice;
• Shifts the onus of proof about the reasonableness of the requirement, condition or practice from the person claiming indirect discrimination to the person who imposed or proposes to impose it, and
• Extends the factors in determining if a requirement, condition, or practice, is reasonable
   

DUTY TO PROVIDE REASONABLE ADJUSTMENTS

The Equal Opportunity Law provides express duties on employers, educational authorities, and providers of goods and services to make reasonable adjustments for people with impairment, which may require an employer to make reasonable adjustments for a person with impairment who:

• Is offered employment, or is an employee; and
• Requires the adjustments to perform the genuine and reasonable requirements of the employment

This obligation requires an employer, educational authority, or service provider to balance the need for change with the cost or effort involved in making this change. Accordingly, employers, educational authorities, and providers of goods and services do not need to make these adjustments if:

• The adjustments are not reasonable; or
• The person with the impairment could not perform the genuine and reasonable requirements of the employment, or participate in education, or access services even with the adjustments.
   

DUTY TO ELIMINATE DISCRIMINATION

The Equal Opportunity Law imposes a duty to take reasonable and proportionate measures to eliminate discrimination, sexual harassment, and victimisation. The duty applies to all organisations already covered by the prohibitions against discrimination, sexual harassment, and victimisation in different areas of public life: employment, education, provision of goods and services, accommodation, clubs and sport.  

IMPLICATIONS OF THIS DUTY

Under existing laws, employers are vicariously liable for the actions of their employees, unless they can show they have taken reasonable precautions to prevent breaches of the Equal Opportunity Act.

Employers should implement risk management strategies to avoid vicariously liability for discrimination. The duty does not require employers and organisations to take steps to eliminate discrimination that are unreasonable in the context of their size or resources.

The duty requires employers and organisations to take measures that are ‘reasonable and proportionate’, ensuring that the level of compliance required by any duty holder is appropriate and proportionate to their size and operations, taking into account the:

• Outcome that the duty seeks to achieve (to eliminate discrimination as far as possible);
• Size of the duty holder, their resources and service priorities, and
• Practicability and cost of compliance
   

Review of Policies & Procedures

This duty may require employers and organisations to implement policies and procedures aimed at preventing discrimination and providing comprehensive training for staff.

Large employers and organisations must demonstrate a systematic approach to compliance, self-auditing to identify areas of non-compliance, and regularly reviewing and improving compliance.

Small employers and organisations may satisfy these obligations by ensuring the workplace is aware of the relevant obligations and has a process for responding to breaches and regularly reviewing compliance.  

Enforcement of Duty to Eliminate Discrimination

An individual cannot bring a complaint alleging a breach of this duty. The Commission may investigate possible breaches of the duty and only if they are likely to be serious and affect a class or group of people. If the Commission considers that there has been a breach of this duty, it can:

• Facilitate compliance with the Equal Opportunity Law by providing educational materials and compliance advice; and
• Accept a formal written undertaking to comply with the Equal Opportunity Law, and
• Issue a compliance notice setting out the action required to remedy the breach.
   

Compliance Notice

A person who receives a compliance notice from the Commission may apply to VCAT for a review of the compliance notice, and its terms.

The Commission may take action at VCAT to enforce a breach of an undertaking or the compliance notice. VCAT may make an order requiring compliance with the undertaking or the compliance notice and a breach of that order constitutes contempt of Commission.  

Protection of volunteers and unpaid workers from sexual harassment

Workplace policies for volunteers will need to protect them from sexual harassment in the same way it protects paid employees. Employers must not sexually harass a person seeking to work with that employer as a volunteer, or a person who works for that employer as a volunteer. In addition, volunteer workers must not sexually harass another employee or volunteer, their employer, or another person seeking to work with the employer.

If a volunteer worker sexually harasses other workers (paid or unpaid) within the organisation, or customers or clients of the organisation, or if another worker or client sexually harasses a volunteer and the employer takes no action, then the employer could be vicariously liable. This would also apply in the context of industrial organisations, qualifying bodies, educational institutions, and clubs.

Volunteers may also be personally or jointly liable together with an employer for their actions if they sexually harass others.  

Religious Bodies

The Equal Opportunity Law restricts the grounds on which religious bodies can discriminate against people to religious belief, sex, and sexual orientation, as these attributes relate to particular religious doctrines.

Religious bodies and schools must demonstrate why the discrimination is reasonably necessary to avoid injury to the religious sensitivities of adherents of a religion. In employment, religious bodies must show why having a particular attribute, for example, being of a particular faith, is an inherent requirement of a job offered by that body. In determining what an inherent requirement is, it is appropriate to take into consideration the nature of the religious body and religious doctrines, beliefs or principles of that body.  

Investigation Powers of the Commission

The Commission will be able to:

• Investigate serious systemic discrimination; and
• Engage directly with employers and organisations and require compliance or an enforceable undertaking to address the discrimination; and
• Issue compliance notices; and
• Conduct public inquiries into large discrimination issues of public significance with the consent of the Attorney-General. After conducting the inquiry, the Commission may provide a report to the Attorney-General, which it may table in Parliament; and
• Compel attendance of witnesses, information, and documents in the context of an investigation or public inquiry; and
• Conduct an investigation into any matter relating to the operation of the Equal Opportunity Law that raises an issue that is serious in nature, concerns a possible breach of the Equal Opportunity Law and relates to a class or group of people if the investigation would further the objectives of the Equal Opportunity Law.

After an investigation, the Commission may choose to accept an enforceable undertaking from an employer or organisation. This undertaking will provide that the person will take certain actions, or stop taking certain actions, in order to comply with t the Equal Opportunity Law.

Alternatively, if the Commission believes that an unlawful act has occurred, it may issue a compliance notice to the person responsible for the unlawful act.

NEED MORE INFORMATION

Behan Legal assists and advises on these important issues. For an appointment, call 03 9646 0344.