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Federal, State and Territory legislation prohibits direct and indirect discrimination on a number of grounds as well as sexual harassment. Legislation also prohibits victimisation and vilification.
Most complaints of discrimination occur in a work context. The basic rule is that employers may not unlawfully discriminate in the arrangements made for offering employment, the selection of employees, or the terms and conditions of employment offered. Once an employment relationship exists, it is unlawful for an employer to discriminate on the basis of any of the prescribed grounds or attributes in the terms or conditions of employment, by denying access to promotion or other benefits (such as training), by subjecting an employee to any other detriment, or by subjecting an employee to less favourable working conditions resulting in harassment.
There may be an exemption from these requirements in limited circumstances, particularly where the nature of the role has some particular requirement. It is also necessary for employers to make clear to employees and contractors that they are also bound by this legislation as the employer can be held liable for the actions of their workers.
Complaints about discrimination can be made to either the state Anti-Discrimination Commission or to the federal Human Rights and Equal Opportunity Commission where the employer is a corporation. The following comments primarily reflect the provisions of the Queensland anti discrimination legislation but the federal legislation and other state legislation is similar in effect.
The Anti-Discrimination Act 1991 (Qld) says it is against the law to treat a person unfairly because of:
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sex
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marital status
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relationship or parental status
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race
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religious belief or activity
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political belief or activity
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impairment/disability
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trade union activity
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lawful sexual activity
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pregnancy
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breastfeeding needs
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family responsibilities
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gender identity
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sexuality
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age.
It is also a breach of the legislation to treat a person unfairly because of their association with someone from one of these groups. For example, if you have to leave a café because your breastfeeding friend has been asked to leave, it is unlawful, and you, as well as your friend, could lodge a complaint with this Commission.
The legislation applies in the areas of:
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work and work related areas including pre-work;
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education;
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the provision of goods and services;
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superannuation;
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insurance;
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disposition of land;
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accommodation;
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club membership and affairs;
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administration of state laws and programs; and
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local government.
By way of example, discrimination comes within the legislation if a person is treated unfairly when they:
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apply for a job, or try to get into a course;
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are at work, school, college or university;
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buy things in shops, hotels etc;
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rent a flat, house, caravan or motel room;
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apply for credit or a loan;
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use any business, trade or professional services;
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use services provided by your city or shire council or the state government;
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deal with superannuation or insurance companies;
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buy land.
In order to lodge a complaint with the Commission or HREOC, it is necessary for a person to show that they were treated badly or unlawfully on one of the grounds (e.g. race) and in one of the areas (e.g. at work) and also demonstrate how they were affected by it.
Not all discrimination is against the law. No matter how unfair the treatment is, it must be covered by the legislation before a complaint can be lodged with the Commission. For example, the Commission could not deal with a complaint if a person was treated unfairly because of their physical appearance or because of bullying in the workplace, unless these can be related to an attribute such as race or sex.
Complaints of discrimination must be lodged with the Commission within 12 months of the incident occurring. If the matter cannot be resolved by conciliation in the Commission, then the complainant can choose to refer his complaint to the Anti-Discrimination Tribunal Qld where the complaint is heard through a judicial process.
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