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As an employer, what do you do when, for example: - you learn that a current employee has suffered an injury which may affect their work?
- you receive a job application from a blind person or a person suffering from other sort of disability?
- a person of mature years applies for a job that is normally carried out by a younger person?
It is tempting for an employer in these circumstances to assert that genuine occupational requirements mean that the person can no longer carry out their job. However, employers must tread carefully in these situations or risk a complaint of discrimination being made. A recent decision of the Anti-Discrimination Tribunal Queensland, Walsh v. St Vincent de Paul Society Queensland, in which the writer represented the successful complainant, is a good illustration of the dangers of not doing the proper groundwork. Ms Walsh, a non Catholic, was a long term volunteer for the St Vincent de Paul Society and progressed to holding senior positions as the president of three local conferences of the Society’s Queensland branch. However, in early 2004 she was told by the Society that she had to either become a Catholic, resign as President or leave the Society entirely. Ms Walsh complained to the Anti Discrimination Commission Queensland alleging that she had been discriminated against because of her religious beliefs. The Society’s main defence was that Catholicism was a genuine occupational requirement of the positions held by Ms Walsh and the admitted discrimination was not unlawful. However, the Anti Discrimination Tribunal Queensland held that it was not essential for Ms Walsh to be a Catholic in order to perform her roles. In particular, whilst the Society’s constitutional rules and guidelines suggested that there was a spiritual aspect to the role, it was not a major part and it was going too far to say that Catholicism was a genuine occupational requirement of the position. The member ordered that the society pay Ms Walsh $27,500 in damages plus legal costs. Thus ended an expensive four year legal battle by the Society. The lesson is that a cautious employer will undertake a detailed analysis of the components of positions and the work carried out and also carry out an assessment of the person’s ability to carry out the role before making any decision. The mere fact that some accommodations need to be made for the person is not the end of the matter. Anti discrimination legislation provides that unjustifiable hardship to the employer must exist before discrimination on this ground will be lawful. However, if after proper investigation, there are particular classes of persons who will not be suitable for a position, consideration should be given to making an application to the Tribunal for an exemption from the requirements of the legislation.
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Discrimination