Explaining the types of discrimination

Contributed by The Victorian Equal Opportunity and Human Rights Commission and current to 28 June 2019

Unlawful discrimination includes both 'direct' and 'indirect' discrimination on the basis of a protected attribute. The tests for direct and indirect discrimination are general tests that may apply to any circumstances of discrimination covered by the Equal Opportunity Act 2010 (Vic) (Equal Opportunity Act).

Direct discrimination

Under section 8 of the Equal Opportunity Act, direct discrimination occurs if a person treats, or proposes to treat, someone with a protected attribute unfavourably because of that attribute. Section 8 also includes examples of direct discrimination:

(1) An employer advises an employee that she will not be trained to work on new machinery because she is too old to learn new skills. The employer has discriminated against the employee by denying her training in her employment on the basis of her age.

(2) A real estate agent refuses an African man's application for a lease. The real estate agent tells the man that the landlord would prefer an Australian tenant. The real estate agent has discriminated against the man by denying him accommodation on the basis of his race.

In determining whether a person directly discriminates, under section 8(2) it is irrelevant:
  • whether that person is aware of the discrimination or considers the treatment to be unfavourable
  • whether the attribute is the only or dominant reason for the treatment, provided that it is a substantial reason.

A new test for direct discrimination

The 'unfavourable treatment' test for direct discrimination under the Equal Opportunity Act differs from the test under the Equal Opportunity Act 1995 (Vic) (1995 Act). It also differs from most formulations of direct discrimination under other state and federal anti-discrimination legislation. The more traditional test for discrimination is the 'comparator test', such as that contained in section 5(1) of the Sex Discrimination Act 1984 (Cth), for example. This test requires that a person needs to be treated 'less favourably' than someone without the protected attribute.(1)

Parliament's stated intention in shifting away from the 'comparator test' was to simplify the definition by avoiding the unnecessary technicalities often associated with identifying an appropriate comparator.(2)

What 'unfavourable treatment' means

Direct discrimination under section 8 of the Equal Opportunity Act 2010 uses the term 'unfavourable treatment' but does not define it. It is generally understood to bear its ordinary meaning, which includes adverse treatment. See Al Abody v Director of Housing (Human Rights) [2017] VCAT 431 [37], citing Aitken v State of Victoria - Department of Education & Early Childhood Development [2012] VCAT 1547.

In Slattery v Manningham CC (Human Rights) [2013] VCAT 1869 VCAT determined the concept of 'unfavourable' requires simply 'an analysis of the impact of treatment on the person complaining of it' [53]. It does not require an assessment of the way in which a person who has a particular attribute is treated, compared with a person without that attribute or who has a different attribute, as was the case under the 1995 Act [51]-[53]. Senior Member Nihill noted, however:

This analysis may be informed by consideration of the treatment afforded to relevant others, particularly in circumstances where it is not clear whether the treatment is unfavourable [53].

In determining unfavourable treatment it is, therefore, not necessary in all cases to determine whether a complainant with a particular attribute has been dealt with less favourably because of that attribute when compared with persons without that attribute. What is required is determining whether the consequences of the treatment are adverse to the complainant's interest or disadvantages them, and whether the dealing has occurred because of a relevant attribute of the complainant. See, for example, Lewin v ACT Health & Community Care Services [2002] ACTDT 2 [47]; Edgley v Federal Capital Press of Australia [2001] FCA 379 [53]-[54]; Prezzi, Patricia Anne and Discrimination Commissioner [1996] ACTAAT 132.

Unfavourable treatment is likely, therefore, to occur where the treatment and its consequences are - or would be - unfavourable or adverse to the complainant. See Prezzi, Patricia Anne and Discrimination Commissioner [1996] ACTAAT 132. Treatment may also be 'unfavourable' if a person is singled out, or treated differently, because of a particular attribute. See, for example, NC v Queensland Corrective Services Commission [1997] QADT 22.

For example, in Kuyken v Lay (Human Rights) [2013] VCAT 1972 VCAT was satisfied a direct threat of disciplinary action could amount to unfavourable treatment (paragraphs 113-114). In the matter of Jemal v ISS Facility Services Pty Ltd (Human Rights) [2015] VCAT 103 VCAT observed unfavourable treatment can include attribute-based harassment or bullying, being subjected to humiliation or being denied a benefit that is offered to others [90].

Treatment that is likely to constitute 'unfavourable' treatment in employment, for example, can include (this is not an exhaustive list):

  • providing a benefit on unfavourable terms (for example, less pay or greater inconvenience)
  • unfairly allocating tasks (too many tasks or an unfair share of unpleasant tasks)
  • unfair rostering (including the allocation of leave and overtime)
  • excluding a person from essential communications
  • refusing essential resources needed to do the job
  • subjecting a person to humiliation.

However, not all adverse decisions will be discriminatory. In Sinopoli v Harrison (Human Rights) [2017] VCAT 355 VCAT concluded a doctor's decision to not offer treatment because of the risks involved was not unlawful discrimination based on a patient's disability. It held a clinical decision based on medical evidence may be right or wrong as a clinical decision, but it is not unlawful treatment: it is a recognition of the limits of medical science [53]. Further, VCAT found it is not unlawfully discriminatory to withhold medical treatment on the basis that it would be too risky or of no benefit, even if that decision relates to a protected attribute, such as the patient's weight [62]-[63].

Humiliation as unfavourable treatment

Humiliation is not defined in the Equal Opportunity Act and its definition has not been the subject of significant Victorian case law. Examples of humiliation that have been found to be 'unfavourable treatment' (and have subjected an employee to a detriment) are:

Humiliation as unfavourable treatment was considered in detail in Walgama v Toyota Motor Corporation Australia Ltd (Anti Discrimination) [2007] VCAT 1318. Mr Walgama made a complaint of discrimination against his employer Toyota, including on the grounds of race because he alleged he had been subjected to racial abuse by his colleagues. In particular, a draft roster prepared by Mr Walgama had been defaced with offensive sexual and racial language ('black c--t'). VCAT considered the defacement of the roster constituted a 'denigration' of Mr Walgama, but did not constitute 'humiliation'.

VCAT considered the Oxford English Dictionary definition of humiliation in its decision - '[t]he action of humiliating or condition of being humiliated; humbling, abasement formerly often equal humbled or humbled condition, humility'. It also considered the meaning of 'humiliate': 'To make low or humble imposition, condition, or feeling; … to humble or abase oneself, to stoop, sometimes to prostrate oneself, to bow' [51]-[52].

VCAT concluded because there was no evidence the defaced document was shown to anyone other than Mr Walgama and those to whom he complained, it was 'difficult to see that in the circumstances he has been humiliated' [53]. Importantly, this reasoning only applied to 'humiliation' and did not consider whether acts that contributed to a hostile working environment could amount to unlawful discrimination and a detriment in other ways, such as harassment.

VCAT took a similar view in Poulter v State of Victoria[2000] VCAT 1088, involving a complaint of victimisation in employment. The complainant's former employer advised his current employer that she had seen him attending VCAT regarding a complaint about his former employer. While VCAT found the former employer's conduct was improper, it was not satisfied the complainant's subjective perception of the situation with nothing more was sufficient to comprise humiliation, denigration and, therefore, detriment under the Equal Opportunity Act [25].

However, in Laverdure v Jayco Caravan (Recreational Industries) Pty Ltd[2001] VCAT 1706 VCAT found humiliation had occurred as a result of verbal racial abuse in the workplace. In particular, VCAT found humiliation occurred in a situation where:

[T]he language used, the circumstances of its use and the tone observed by independent witnesses were such as to attract to this conduct all the hallmarks of racial abuse, designed to cause humiliation and denigration of the Complainant (Member O'Dwyer [7]).

The complainant was called 'black prick' and 'black bastard' and told to go back to his place of birth in an abusive and derogatory tone. The comments were made in the workplace, not in a joking manner or as part of workplace banter, and where work colleagues could overhear/witness the abuse.

Treatment 'because of' a protected attribute

Establishing direct discrimination requires establishing a causal connection between the treatment complained of and the protected attribute. Direct discrimination occurs only where the unfavourable treatment occurred 'because of' a person's protected attribute. In discrimination law, this is sometimes referred to as 'causation'.

Commonly, discriminatory treatment can have multiple reasons. To prove direct discrimination under section 8(2)(b) of the Equal Opportunity Act the protected attribute must be a 'substantial' reason for the treatment. It does not have to be the 'only' or 'dominant' reason. See Martin v Padua College [2014] VCAT 1652 [84].

This requirement was discussed in Stern v Depilation & Skincare Pty Ltd[2009] VCAT 2725, where Deputy President McKenzie said:

The attribute need not be the only or dominant reason for the treatment, but must be a substantial reason for it. This means that the attribute must be a reason of substance for that conduct. The motive of the discriminator is irrelevant, and it is also irrelevant whether the discriminator was aware of the discrimination or considered the treatment less favourable (Deputy President McKenzie [8]).

VCAT held Ms Stern's pregnancy was a 'substantial reason' for her redundancy. Although the 'dominant reason' for the redundancy was a downturn in business, the actuating factor in choosing Ms Stern for redundancy was that she was a part-time employee working reduced hours due to pregnancy. Pregnancy was a substantial reason, therefore, for the treatment [67].

In a case about race discrimination, VCAT upheld the claim where no other explanations for the conduct were plausible. In Kibet v Empire Club [2018] VCAT 1868, Mr Kibet was denied entry to a club. VCAT found that 'It is not controversial that race-based discrimination occurs in our community. Neither is it controversial to say that a person might make decisions based on race some of the time, without being racist all the time. The most immediately obvious thing about Mr Kibet, in a crowd of white people, is that he is not white. Given that none of the innocent explanations offered for excluding Mr Kibet were at all likely on careful examination, I was satisfied that he was excluded from the club because of his race, specifically his appearance (SM Steele [118]).'

Knowledge of a protected attribute

Knowledge of the complainant's protected attribute is relevant to whether the unfavourable treatment or proposed treatment was 'because of' that protected attribute, so constitutes direct discrimination.

For example, in Tate v Rafin [2000] FCA 1582(Rafin), the respondent revoked the complainant's membership of a club following a dispute. The complainant claimed the reasons for revoking his membership included his psychological disability that resulted in aggressive behaviour. In this case, the respondent was unaware of the complainant's disability. Judge Wilcox found the respondent had not treated Mr Tate less favourably because of his psychological disability:

The psychological disability may have caused Mr Tate to behave differently than if he had not had a psychological disability, or differently to the way another person would have behaved. But the disability did not cause the club to treat him differently than it would otherwise have done; that is, than it would have treated another person who did not have a psychological disability but who had behaved in the same way. It could not have done, if the club was unaware of the disability [67].

Justice Wilcox's reasoning in Rafin is consistent with the decision of the Full Federal Court in Forbes v Australian Federal Police (Commonwealth) [2004] FCAFC 95 (Forbes). In that case, the Court considered whether the Australian Federal Police discriminated against the complainant when it withheld certain information about her depressive illness from a review panel convened to consider her re-deployment. The Court accepted the respondent had withheld information about the complainant's medical condition on the ground that it considered she did not have a disability, and that this did not amount to discrimination 'because of' a disability [71]-[73] [76].

Nonetheless, to succeed in this type of defence, it is likely that a respondent will need a plausible and legitimate basis for claiming that it had no knowledge of the particular attribute.(3) In Forbes, there was evidence Ms Forbes had lodged a claim for a depressive illness with Comcare that had been rejected (including on review). An internal review had also found Ms Forbes' allegations about a workplace incident she claimed had caused her illness were unsubstantiated. On those bases, the respondent had formed the view that the complainant did not have a disability.

The question of the respondent's knowledge, however, is not always straightforward. The case of Wiggins v Department of Defence [2006] FMCA 800(Wiggins)(4) demonstrates that, where something about the complainant's protected attribute is known by a respondent organisation, that knowledge may be imputed to individuals who engage in discriminatory conduct. In Wiggins, an officer of the respondent who demoted the complainant knew only that the complainant had a medical condition confining her to on-shore duties. He had no specific knowledge of the complainant's disability. However, Federal Magistrate McInnis deemed the officer knew the nature and extent of the complainant's disability as he could have accessed her medical records. This was sufficient to 'establish knowledge in the mind of' the Navy [168]. His Honour stated:

I reject the submission of the Respondent that the Navy does not replace Mr Jager as the actual decision-maker in the context or that the maintenance of information in a file does not equate to operational or practical use in the hands of the discriminator. In my view that is an artificial distinction which should not be permitted in discrimination under human rights legislation. To do so would effectively provide immunity to employers who could simply regard all confidential information not disclosed to supervisors as then providing a basis upon which it could be denied that employees as discriminators would not be liable and hence liability would be avoided by the employer [168].

This decision suggests that where information about a person's protected attributes is known within a respondent organisation, the respondent cannot rely on its own failure to communicate to avoid liability for discrimination, even where the information is of a confidential or sensitive nature.

Knowing a specific individual

A person can be treated unfavourably because of their protected attribute even where the respondent does not have individual knowledge of them, as the following cases show.

In Cobaw Community Health Services v Christian Youth Camps Ltd [2010] VCAT 1613, VCAT considered a discrimination claim where accommodation was refused to a person booking on behalf of a support group for same sex attracted youth. The respondent argued it had no knowledge of the specific sexual orientation of the group members. VCAT considered whether the refusal was based on the attributes of sexual orientation or personal association with another person. VCAT noted people did not need to be identified to the respondent by name and attribute [175].

The Supreme Court adopted a similar approach in Obudho v Patty Malones Bar Pty Ltd [2017] VSC 28 (Obudho). It was alleged the respondent had cancelled a booking for an event entitled 'Africa Fest'. VCAT found the cancellation was because the prospective patrons of the event would be African, amounting to discrimination on the basis of race [13]. On appeal, the respondent submitted because treatment must be directed towards a person, there must be a 'connection or nexus between the discriminator and victim' [84]. However, the Supreme Court rejected this and stated:

Behaviour may be directed 'towards a person' when it is directed to people that share a protected attribute, whether or not the individuals are known to the discriminator. The word 'treat' means, in the context of s 8, to 'deal with or behave or act towards in specified way'. It is commonplace to speak of governments, ministers and bureaucrats treating groups of people, such as refugees, Indigenous or homeless people, in a particular way. Those people may or may not be known to the person or entity meting out the treatment [86]-[86].

The Supreme Court decided conduct such as policies that are directed towards groups of people with a particular attribute and are adverse to those people may be direct discrimination, contravening section 8 of the Equal Opportunity Act.

This draws into question the findings in Kuyken v Lay [2013] VCAT 1972. In that case, the Supreme Court found introducing a grooming policy that required police officers to be cleanly shaven with short hair was not unfavourable treatment on the basis of physical features, because it was not conduct directed at the complainants.(5) In Obudho, the Supreme Court decided conduct such as policies that are directed towards groups of people with a particular attribute and that are adverse to those people may be direct discrimination that contravenes section 8 of the Equal Opportunity Act.

Inferring a reason for the treatment

The reason for the treatment in discrimination claims - the causation element - is often not explicit or overt. Courts and tribunals often need, therefore, to infer the reason for the treatment from the surrounding facts and evidence to make a finding.

When inferring a discriminatory reason for conduct, the court or tribunal must be satisfied there is no 'equally or more probable explanation of the conduct'.(6) This does not require the court or tribunal to accept the innocent explanations proffered by the respondent in all circumstances. See, for example, Poniatowska v Hickinbotham [2009] FCA 680; Oyekanmi v National Forge Operations Pty Ltd [1995] VADT 3. Rather, if an innocent explanation is equally or more probable on the basis of the evidence and circumstances, an inference of unlawful discrimination cannot be drawn.(7)

In Department of Health v Arumugam [1988] VR 319(Arumugam), the complainant alleged the Department of Health had discriminated against him on the ground of his race on two occasions. First, by declining to appoint him permanently to the position of Psychiatric Superintendent of Plenty Hospital in Bundoora (he had been acting in this position for six months). Second, by determining that a person other than the complainant be appointed to the position. Justice Fullagar said it was not open to a tribunal to draw the inference that Dr Arumugam was not selected for the position of Psychiatrist Superintendent because of his race simply because another less qualified candidate was ultimately selected. Justice Fullagar said:

The mere fact that the appointment did not go to the man whom the Board considered to be clearly the better qualified candidate, did not of itself indicate discrimination of some kind [325].

His Honour went on to say:

If all that is proved, by inference or otherwise, in the absence of explanation, is less than all the elements of proof required for the complaint to succeed, neither a total absence of explanation nor a non-acceptance of an explanation can by itself provide an element of proof required. It can enable already available inference to be drawn against dishonest explainers with greater certainty, but that is all. In the present case 'the ground of race' was, in the absence of explanation clearly lacking, and the non-acceptance of this proffered explanation could not provide the missing elements [330].

In Arumugam, Justice Fullagar held it was necessary to show intention to make a case of direct discrimination. But this requirement was later negated by the High Court in Waters v Public Transport Corporation [1991] HCA 49; (1992) 173 CLR 349 and then by section 10 of the Equal Opportunity Act, which provides that motive is irrelevant. Intention is discussed further below.

A different conclusion was reached in Oyekanmi v National Forge Operations Pty Ltd [1995] VADT 3. VCAT considered a complaint by Mr Oyekanmi, an engineer originally from Nigeria, who claimed he was dismissed from employment because of his race. VCAT inferred the reason for Mr Oyekanmi's dismissal was race based. Relevantly, Mr Oyekanmi was asked during an employment interview whether he anticipated he would have any problems working in an organisation that was 'all white'. The chairman of the company also gave evidence it was crucial for Mr Oyekanmi to have 'credibility' with his colleagues. This credibility included being able to strike up working relationships and be accepted by his workmates [78].VCAT rejected the argument that the credibility requirement was racially neutral. It found the credibility requirement was applied to Mr Oyekanmi because of a perception that others in the workforce might not accept him due to his race. For this reason, VCAT found the reason for the dismissal - the failure to satisfy the credibility requirement - was because of Mr Oyekanmi's race.(8)

Justice Smith considered these decisions, especially the findings in Arumugam, in the case of State of Victoria v McKenna [1999] VSC 310 (McKenna). In his reasons, his Honour cautioned Justice Fullagar's comments in Arumugam ought to be understood in the context of the facts of that particular case. He pointed out that the selection panel in Arumugam had proffered an alternative, innocent explanation - namely, that the candidate appointed to the position was better suited to the role because he was more dynamic and articulate, albeit lesser qualified than Dr Arumugam.

Justice Smith went on to say that in discrimination complaints the person's attribute, as well as societal prejudices and attitudes towards persons with that attribute, are relevant to drawing inferences. The existence of racist attitudes and stereotypes within a community or organisation, for example, may leave open an inference of racial discrimination. It is then a matter for the court or tribunal to decide whether an innocent reason is equally or more probable than the proscribed reason. Justice Smith found a finding of discrimination would have been open in Arumugam 'if, on the evidence, it was open to the Board to find no selection Board acting reasonably could have preferred [the other applicant] to Dr Arumugam' [43].

Justice Smith applied these principles in McKenna, holding that it was appropriate for VCAT to infer that a police officer, Crossley, had disclosed the personal address of his colleague, the complainant, to her ex-partner because of the complainant's sex. Crossley had told VCAT that he would have disclosed the personal address of any colleague in similar circumstances, regardless of whether the colleague was a man or woman. However, Justice Smith agreed it was open to VCAT to reject that evidence and infer that the reason for the conduct was discriminatory, particularly given the surrounding evidence about a sexist culture within the workplace and the sexist attitude of Crossley. In those circumstances, 'it was open to VCAT to conclude Crossley was reacting again in a sexist manner to aggression on the part of a woman' [97].

Irrelevance of motive and intention

Under the Equal Opportunity Act, it does not matter whether the respondent was aware of the discrimination, or whether he or she intended to breach the law. Unlawful discrimination may be unintentional. In other words, the relevant question is, what was the 'true basis' for the conduct, putting the respondent's intention aside?(9)

Section 8(2)(a) of the Equal Opportunity Act states that it is not relevant, in determining whether a person directly discriminates against another, whether that person - the discriminator - is aware of the discrimination or considers the treatment to be unfavourable.

Section 10 of the Equal Opportunity Act also clarifies that 'in determining whether or not a person discriminates, the person's motive is irrelevant'. For example, page 14 of the Explanatory Memorandum outlines that an employer who refuses to employ a candidate because she is Aboriginal, not because the employer dislikes Aboriginal people, but because the employer thinks that an Aboriginal person working in the job would be given a hard time by other employees, who are prejudiced towards Aboriginal people, still discriminates against that candidate.

In Obudho v Patty Malones Bar Pty Ltd [2017] VSC 28, VCAT found it is necessary for complainants to prove their case on the balance of probabilities. A fact is proved if the complainants satisfy VCAT that it is more probable than not that it occurred and that there is no equally or more probable innocent explanation of the conduct. Regard must be had to the allegations made. The seriousness of the allegations will influence the evidence sufficient to prove those allegations and the inferences VCAT is entitled to draw. The standard of proof is discussed further in the chapter on Procedures and evidence.

Indirect discrimination

Legal protections against indirect discrimination recognise treating all people the same, regardless of difference, may unfairly disadvantage some people or groups of people. Indirect discrimination is often subtler and more difficult to recognise than direct discrimination.

Under the Equal Opportunity Act, indirect discrimination occurs when an unreasonable requirement, condition or practice - which may appear to treat people equally - has the effect of disadvantaging, or potentially disadvantaging, a group of people with a particular protected attribute.

Section 9 of the Equal Opportunity Act defines 'indirect discrimination' as follows:

(1) Indirect discrimination occurs if a person imposes, or proposes to impose, a requirement, condition or practice -

a) that has, or is likely to have, the effect of disadvantaging persons with an attribute; and

b) that is not reasonable.
 
(2) The person who imposes, or proposes to impose, the requirement, condition or practice has the burden of proving that the requirement, condition or practice is reasonable.

(3) Whether a requirement, condition or practice is reasonable depends on all the relevant circumstances of the case, including the following -

a) the nature and extent of the disadvantage resulting from the imposition, or proposed imposition, of the requirement, condition or practice;

b) whether the disadvantage is proportionate to the result sought by the person who imposes, or proposes to impose, the requirement, condition or practice;

c) the cost of any alternative requirement, condition or practice;

d) the financial circumstances of the person imposing, or proposing to impose, the requirement, condition or practice;

e) whether reasonable adjustments or reasonable accommodation could be made to the requirement, condition or practice to reduce the disadvantage caused, including the availability of an alternative requirement, condition or practice that would achieve the result sought by the person imposing, or proposing to impose, the requirement, condition or practice but would result in less disadvantage.
 
(4) In determining whether a person indirectly discriminates it is irrelevant whether or not that person is aware of the discrimination.

Examples

(1) A store requires customers to produce photographic identification in the form of a driver's licence before collecting an order. This may disadvantage a person with a visual disability who is not eligible to hold a driver's licence. The store's requirement may not be reasonable if the person with a visual disability can provide an alternative form of photographic identification.

(2) An advertisement for a job as a cleaner requires an applicant to speak and read English fluently. This may disadvantage a person on the basis of his or her race. The requirement may not be reasonable if speaking and reading English fluently is not necessary to perform the job.

A new test for indirect discrimination

There are some key features of the tests for indirect discrimination in the Equal Opportunity Act.

Section 9 of the Equal Opportunity Act requires a complainant to establish that the requirement, condition or practice causes, or is likely to cause, 'disadvantage' to people with the particular attribute. It is not necessary to draw comparisons between people with and without the attribute. Under the 1995 Act, the complainant needed to demonstrate he or she could not comply with the relevant requirement, condition or practice, and that a substantially higher proportion of people without the particular attribute could comply.

The onus of proving whether a condition, requirement or practice is reasonable falls on the respondent to a claim of indirect discrimination. Under section 9, the complainant has to prove the circumstances giving rise to the claim, namely the requirement, condition or practice that caused them to suffer disadvantage. However, the respondent then has the burden of proving the requirement, condition or practice is reasonable. This key change from the 1995 Act reflects the fact that the respondent is usually better placed to justify and provide evidence about why the condition, requirement or practice was imposed.

What 'requirement, condition or practice' means

A complaint must be based on a 'requirement, condition or practice' to satisfy the test for indirect discrimination. The complainant must precisely formulate the requirement, condition or practice complained of.(10)

The Equal Opportunity Act does not define the terms 'requirement', 'condition' or 'practice'. However, courts have said similar provisions in anti-discrimination laws should be interpreted in a broad rather than technical manner - for example, to encompass 'any form of qualification or prerequisite demanded'.(11)

VCAT is not bound by the complainant's formulation of the requirement, condition or practice. It must determine the true nature of a requirement, condition or practice. It may decide the requirement, condition or practice complained of did not exist, or that a different one existed, based on all the facts and circumstances.(12)

For example, in State of New South Wales v Amery [2006] HCA 14, a group of female casual teachers brought an indirect discrimination complaint on the basis of sex. They argued their employment was subject to a condition that to access higher salary scales required permanent employment status [17]. The complainants' family responsibilities precluded deployment around the state in the same way as permanent teachers. They argued as women with family responsibilities they could not comply with the condition, but a substantially higher proportion of men could comply.

In upholding the State of New South Wales's appeal, the majority of the High Court determined there had been no indirect discrimination. Justices Gummow, Hayne and Crennan held the phrase 'requirement or condition' must be given a broad meaning rather than a technical one, given 'the nature of the mischief' [63].

However, despite a broad interpretation of the phrase, their Honours found the alleged condition had not been imposed on the teachers' employment with the State of New South Wales because they had been specifically employed as 'casual teachers' under a statutory scheme, rather than as permanent teachers. The High Court considered this a material distinction between the positions and their terms of employment. Moreover, the distinction was not adopted by a decision or practice of the state as a condition placed on the teachers' employment. Rather, it was imposed on the state by statute and industrial award [78]-[82].(13)

The extent to which a discriminatory requirement, condition or practice must be articulated and proven varies in case law. Commonwealth cases suggest the requirement, condition or practice does not need to be explicit and can be implied from the circumstances. In Waters v Public Transport Corporation [1991] HCA 49; (1992) 173 CLR 349, for example, the complainants had various physical or intellectual disabilities and relied on the assistance of tram conductors and railway station assistants in order to travel on public transport. The High Court found the removal of conductors from trams gave rise to a requirement or condition that tram travellers be able to use the system without the help of conductors. In Catholic Education Office v Clarke [2004] FCAFC 197 the Full Court of the Federal Court of Australia stated the expression 'requirement or condition should be construed broadly to include any form of qualification or prerequisite, although the actual requirement or condition should be formulated with some precision' [103].The Court went on to say, 'the legislation should be given a generous interpretation and alleged discrimination should not be permitted to evade the statutory definition … by defining its services so as to incorporate the alleged requirement or condition'.

Case law also suggests the 'requirement or condition' does not need to be absolute to support a claim of indirect discrimination. In Secretary, Department of Foreign Affairs and Trade v Styles [1989] FCA 342 the Full Court of the Federal Court of Australia held the employer's 'preference' for a candidate employed at a particular grade (within the public sector classification scale) constituted a 'condition or requirement', even though candidates from lower grades could apply for a role. It found a requirement or condition meant a stipulation that must be satisfied if there is to be a practical (not just theoretical) chance of selection. The Court stated '[we] agree with the learned primary judge that something falling short of an absolute bar to selection may be a 'requirement or condition' (Bowen CJ and Gummow J [26]).

A different approach was taken in Bevilacqua v Telco Business Solutions[2015] VCAT 269, where the respondent refused the complainant's request to reduce her full-time working hours. VCAT rejected the submission that this refusal was evidence of a requirement, condition or practice that employees work full time, regardless of any need for adjustment. It found the evidence involved one request by one employee at one time, and that a pattern of requests and refusals was needed to prove a 'requirement' [187]-[188].

Other examples of requirements, conditions or practices found to exist in recent Victorian cases include:

Essential terms of an employment contract

Case law under the 1995 Act suggests that the requirement, condition or practice must be something more than an essential term of the employment contract to support a claim of indirect discrimination. Something inherent to the 'nature of the job itself' cannot support a claim of indirect discrimination.(14)

Generally, it will be a policy or practice that impacts on a person's ability to be employed, remain employed or fully enjoy the benefits of their employment.

These principles were applied in McDougall v Kimberly-Clark Australia Pty Ltd [2006] VCAT 2211 (McDougall), a case where the complainant claimed her employer indirectly discriminated against her by not paying her salary continuance during a time when she claimed she suffered an impairment - a gambling addiction. Her employer also required her to work in Victoria, though her impairment resulted in a practical inability to do so. VCAT held:

[T]he complainant must identify a requirement or condition that is separate from the terms of her employment contract or from the nature of the job itself. In this case, the nature of the complainant's job was to work within a specific designated territory that happens to be within Victoria. The relevant requirement or condition must apply not just to the complainant but to all the relevant persons, in this case all the employees of the company [35].

VCAT held a requirement for the complainant to work in Victoria was not a 'requirement, condition or practice' capable of supporting a claim of indirect discrimination. Ms McDougall had accepted a sales role based in Victoria, then voluntarily relocated to Perth where she sought help for her gambling problem. Later, she told the company that she could not work in Victoria. VCAT found:
It cannot be said that the fact that her duties involve working in Victoria constitutes the imposition of a discriminatory requirement or condition … In this context, the company was not imposing any requirement on her; rather, she was in effect seeking to vary her terms of employment so that the location of her employment was Western Australia rather than Victoria [36].

To support this reasoning, Vice President Judge Davies relied on State of Victoria v Schou [No 2] [2004] VSCA 71 (Schou [No 2]) (also discussed in the section Whether the condition, requirement or practice is 'reasonable'). The complainant Ms Schou was a sub-editor of the Hansard reports. She claimed the requirement to attend work full time at Parliament on house sitting days was unreasonable. Ms Schou suggested she, unlike her colleagues, could not comply because of her status as a carer and parent. VCAT upheld Ms Schou's complaint, but on appeal to the Court of Appeal her complaint was rejected.

The key question on appeal in Schou [No 2] was whether the requirement as formulated was reasonable in all the circumstances. Justice Phillips held in the context of Ms Schou's employment and the duties she was required to perform it was reasonable. He found '[t]here was ample reason, surely, to justify such a requirement or condition which was, after all, a term of the contract of employment when first made' [24].

However, the reasoning in Schou [No 2] and McDougall does not appear to have been followed in later indirect discrimination cases. Further, in McDougall, VCAT found the relevant requirement or condition must apply not just to the complainant but to all the relevant persons. This finding appears to contradict other cases that have found an unreasonable condition that applied to only one person.

For example, in Kelly v TPG Internet [2003] FMCA 584, Federal Magistrate Raphael found an employee had been indirectly discriminated against. A condition was imposed that her promotion be on an 'acting' rather than permanent basis, in circumstances where the employee was pregnant and planning to take maternity leave. Another employee who the company knew intended to take leave was appointed to a permanent role around the same time [56].

These aspects of McDougall and Schou [No 2] should be treated with caution.

Essential terms of other contracts

Whether any essential term of a contract or service can constitute a condition or requirement for the purpose of making out an indirect discrimination claim may also be relevant to other areas of public life.

For example in, Catholic Education Office v Clarke[2003] FCA 1085, Justice Madgwick found a school had indirectly discriminated against a deaf student [45]. His Honour held the school had imposed a 'requirement or condition', namely 'to participate in and receive classroom instruction without the assistance of an interpreter' [42]. In considering what were essential terms of the service offered by the school, Justice Madgwick found:

It is not necessarily inherent in the education of children in high schools that such education be undertaken without the aid of an interpreter. It is not perhaps even necessarily inherent, in an age of computers and cyberspace, that it be conducted to any particular degree in spoken English or in any other spoken language, although the concept of conventional classroom education may be accepted as necessarily implying the use of a spoken language [45].

Reliance on these principles in future cases may be affected by key changes under the Equal Opportunity Act such as:

  • Section 15, the positive duty to eliminate discrimination
  • Section 19, the requirement to make 'reasonable adjustments' for a person with a disability
  • Section 20, to not unreasonably refuse to accommodate a person's responsibilities as a parent or carer.

What 'disadvantage' means

Section 9(1)(a) of the Equal Opportunity Act is concerned with the consequences of the treatment complained of. To satisfy the test for indirect discrimination, the requirement, condition or practice must be unreasonable and have the effect (or likely effect) of 'disadvantaging' persons with an attribute.

The Equal Opportunity Act does not define 'disadvantage'. Given the objects and purposes of the Equal Opportunity Act, the term 'disadvantage' is likely to be interpreted broadly. Under the Discrimination Act 1991 (ACT), for example, disadvantage has been held to occur simply where the treatment is 'adverse to the interests' of persons with the relevant attribute.(15) It is not necessary to draw a comparison between the outcomes for people with and without the relevant attribute. See Prezzi v Discrimination Commissioner (1996) 39 ALD 729.

In the case of Petrou v Bupa Aged Care Australia Ltd [2017] VCAT 1706. (Petrou), Judge Harbison considered the meaning of disadvantage under section 9. The complainant suffered from multiple sclerosis and lived in aged care accommodation run by the respondent. When the complainant moved into the facility, one of the personal care items she took with her was a bed pole to assist her mobility. The respondent banned bed poles in its residential care homes. This was in response to safety alerts following several inquests into deaths of residents of aged care facilities using bed poles. The complainant alleged indirect discrimination.

Using a 'common sense and practical approach' to the word disadvantage, together with the objectives of the Act, Judge Harbison considered two matters relevant to assessing disadvantage:

  • whether the requirement to remove the bed pole disadvantaged Mrs Petrou because it gave her less mobility and a feeling of less independence. Judge Harbison noted:

    A person's right to dignity and a sense of self-worth should not be under estimated. Any activity, however small, that enhances that dignity and self-worth is a significant advantage and any measure which diminishes even to a small part the ability to move is a disadvantage [78].

  • whether it was possible for the requirement to remove the bed pole to be a disadvantage when the purpose was to increase Mrs Petrou's safety and avoid potential risk of death. Judge Harbison concluded the policy was ultimately beneficial and that it was counterintuitive to describe such a measure as a disadvantage.

It may also be necessary to show that the disadvantage occurs for a class of persons, not just an individual, in certain circumstances.

In Petrou Judge Harbison asked whether the Equal Opportunity Act required her to also consider whether the requirement disadvantaged persons in general with the attribute possessed by the complainant (people living with multiple sclerosis). Judge Harbison held:

Although the comparator principle is no longer part of the definition of indirect discrimination in Victoria, I take the view that it is still necessary for any complainant to prove that the requirement has, or is likely to have, the effect of disadvantaging persons with an attribute.
 
This is because the Act says so. That use of the plural 'persons' is important. The form of words is 'the effect of disadvantaging persons with an attribute' … I take the fact that this section is not cast in individual terms but is instead cast in terms of identifying a group of persons with an attribute who are or are likely to be disadvantaged by the requirement, to be an essential feature of the claim of indirect discrimination [102]-[103].

The complainant needed to prove, therefore, that the requirement that bed poles not be used disadvantaged persons with multiple sclerosis or with her physical characteristics, not just her as an individual.

Whether the condition, requirement or practice is 'reasonable'

As explained above, the person who imposed the requirement, condition or practice must prove it was reasonable in all relevant circumstances. If the requirement, condition or practice is found to be reasonable in the circumstances, it does not constitute indirect discrimination.

The question of reasonableness is factual. In relation to Commonwealth discrimination law, the Federal Court of Australia stated:

As Wilcox J. held the test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience. We agree. The criterion is an objective one, which requires the court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the requirement or condition on the other. All the circumstances of the case must be taken into account.(16)

Section 9(3) of the Equal Opportunity Act is consistent with this approach. It sets out a number of factors to be considered in deciding reasonableness. In summary:

  • the nature and the extent of the disadvantage caused
  • whether the outcome is proportionate to what the respondent sought to achieve by imposing the requirement, condition or practice
  • the costs of any alternative measures
  • the respondent's financial circumstances
  • whether reasonable adjustments or accommodation could be made to reduce the disadvantage caused.

The Explanatory Memorandum clarifies that none of these factors in isolation will determine reasonableness. There may also be other relevant factors depending on the particular case (page 14).

In Schou [No 2] [2004] VSCA 71 Chief Justice Phillips commented the central question is whether the condition, requirement or practice actually imposed is reasonable, and not whether some alternative arrangement proposed by the complainant is also reasonable:

As I have said, so far from being not reasonable, the attendance requirement was perfectly reasonable. The existence of the alternative - an alternative which was put forward merely as a short-term solution to the temporary problem - did not dictate the contrary. That is not to say that alternatives are irrelevant: as already noticed, the fact that an alternative could have been adopted will ordinarily be one of the circumstances that must be examined in determining reasonableness. But it must be one that bears upon the reasonableness of the condition or requirement at issue [26].

Chief Justice Phillips went on to provide an example where one condition or requirement is no 'better suited' to the employer's needs than another, in which case 'it ceases to be reasonable to insist upon the one over the other' [27].

Irrelevance of motive and intention

Indirect discrimination may be unintentional. Section 9(4) of the Equal Opportunity Act states that it is not relevant, in determining whether a person indirectly discriminates, whether or not that person is aware of the discrimination.This complements Section 10 of the Equal Opportunity Act, which also clarifies that 'in determining whether or not a person discriminates, the person's motive is irrelevant'.

Notes

1 : The test in the Equal Opportunity Act no longer requires a comparison between the way the complainant was treated (or proposed to be treated) and the way in which another person, without the protected attribute or with a different attribute, would be treated in 'the same or similar circumstances' or 'in circumstances that are the same or are not materially different'.

2 : Victoria, Parliamentary Debates, Legislative Assembly, 10 March 2010, 786 (Rob Hulls, Attorney-General).

3 : See Australian Human Rights Commission, Federal Discrimination Law 2011, ch 5, 17.

4 : See also Walker v State of New South Wales [2003] NSWADT 13.

5 : Kuyken v Lay [2013] VCAT 1972 [105]-[106], citing Edgley v Federal Capital Press of Australia Pty Ltd [2001] FCA 379 [54].

6 : Packer v Neal [1997] VADT 52; citing Oyekanmi v National Forge Operations Pty Ltd [1995] VADT 3.

7 : State of Victoria v McKenna [1999] VSC 310 [40], citing Oyekanmi v National Forge Operations Pty Ltd [1995] VADT 3.

8 : See Jonathan Hunyor, 'Skin-deep: Proof and Inferences of Racial Discrimination in Employment', 25(4) Sydney Law Review 535.

9 : See, for example, Australian Iron and Steel Pty Ltd v Banovic [1989] HCA 56; [1989] HCA 56; (1989) 168 CLR 165. See also Waters v Public Transport Corporation [1991] HCA 49; (1992) 173 CLR 349.

10 : See also Australian Iron & Steel Pty Ltd v Banovic [1989] HCA 56 [10]; [1989] HCA 56; (1989) 168 CLR 165, cited in Sievwright v State of Victoria [2012] FCA 118.

11 : Australian Iron & Steel Pty Ltd v Banovic [1989] HCA 56 [10]; [1989] HCA 56; (1989) 168 CLR 165, 185 cited with approval by the High Court in Waters v Public Transport Corporation [1991] HCA 49; [1991] HCA 49; (1992) 173 CLR 349, 393 (Dawson and Toohey JJ), 406-7 (McHugh J). Also see State of New South Wales v Amery [2006] HCA 14 [63] (Gummow, Hayne and Crenna JJ).

12 : State of New South Wales v Amery [2006] HCA 14 [208]; McDougall v Kimberly-Clark Australia Pty Ltd [2006] VCAT 2211 [35]. See also Gounder v Allmand [2007] VCAT 1898 [87].

13 : Their Honours did not go on to consider whether the conduct was reasonable, but Gleeson CJ, Callinan and Heydon JJ did, and found the conduct was reasonable in the circumstances. Kirby J dissented.

14 : Clymo v Wandsworth London Borough Council [1989] IRLR 241, 247. See, for example, Francis v British Airways Engineering Overhaul Ltd [1982] IRLR 10 [15]; Brook v London Borough of Haringey [1992] IRLR 478 [483].

15 : Firestone v Australian National University [2009] ACTDT 1 [45]. See, for example, J v Federal Capital Press of Australia Limited [1999] ACTDT 2 where 'disadvantage' was taken to include treatment that denied the complainant the opportunity to 'participate in an activity that is generally perceived contain advantages to those who are allowed to participate'.

16 : Secretary, Department of Foreign Affairs and Trade v Styles [1989] FCA 342 [51]. Quoted with approval by Dawson and Toohey JJ in Waters v Public Transport Corporation [1991] HCA 49; [1991] HCA 49; (1992) 173 CLR 349. See also Amery v State of New South Wales [2004] NSWCA 404; [2004] NSWCA 404; (2004) EOC 93-352 and Clarke v Catholic Education Office (2003) FCA 1085. The Victorian Supreme Court also applied this test of reasonableness in State of Victoria v Turner [2009] VSC 66.


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