Other Areas of Civil Law (VCE SSCE Legal Studies): Revision Notes
Discrimination
Introduction to discrimination
Australian law recognises that all individuals have a fundamental right to be free from discrimination. Discrimination refers to the unfavourable treatment of a person based on a certain characteristic or attribute such as race, religious belief, disability, age, gender identity, or physical features. This treatment denies individuals their right to equality and fair participation in society.
Discrimination manifests in two distinct forms, each requiring different approaches to identify and address:
Direct discrimination occurs when someone makes an assumption about what a person can or cannot do based on a personal characteristic or attribute. This type of discrimination is typically more obvious and easier to identify.
Example: Direct Discrimination in Employment
An employer refuses to consider an older applicant for a job role because they assume that person cannot use modern technology. This constitutes direct discrimination because the discriminatory act is based on a stereotypical assumption rather than the individual's actual capabilities or merit.
Indirect discrimination is often more subtle and harder to recognise. It occurs when a rule or policy applies equally to everyone but has an unfair and disproportionate negative effect on people who share a particular attribute.
Example: Indirect Discrimination in the Workplace
A company policy requires all employees to work full-time hours to be eligible for promotion. While this rule appears neutral on its face, it may indirectly discriminate against people who need to work part-time due to caring responsibilities. The rule disadvantages certain groups more than others, even though it applies to everyone equally.
Discrimination can occur across virtually all areas of life where people interact with institutions, organisations, and services. Common settings include schools and educational institutions, workplaces, sporting clubs, membership organisations, accommodation providers, and when purchasing goods or services. The pervasive nature of potential discrimination means the law must provide comprehensive protections.
Real-world context: discrimination during COVID-19
The COVID-19 pandemic, which emerged in 2020, provided a stark illustration of how discrimination can increase during times of social crisis. As the virus first appeared in China, people of Asian descent faced significant increases in racially motivated abuse and discrimination throughout Australia and globally. This occurred in public streets, supermarkets, grocery stores, and on public transport, taking forms such as racial name-calling, online harassment, and verbal threats.
Research by the Asian Australian Alliance revealed that as the virus spread through Victorian communities and lockdown restrictions extended, the "blame" for COVID-19 shifted from mainly people with Asian cultural backgrounds to other migrant communities, particularly Muslim communities living in areas with high case numbers.
Real-World Incident: Discrimination at Royal Children's Hospital
In 2020, staff members at the Royal Children's Hospital in Melbourne reported being racially profiled. In one documented incident, a family refused treatment from a doctor because of her race and fears she could spread the virus to their child. This demonstrates how discrimination can manifest even in healthcare settings during times of crisis.
This scenario demonstrates how discrimination can intensify during periods of community stress and uncertainty, making strong legal protections essential for maintaining social cohesion and protecting vulnerable groups.
Rights protected by the law
Multiple layers of legislation protect Australians from discrimination, operating at both state and federal levels. Understanding this legislative framework is crucial for recognising when discrimination is unlawful and what protections exist.
Victorian and Commonwealth anti-discrimination statutes
The following statutes provide comprehensive protection against discrimination:
Equal Opportunity Act 2010 (Vic) – This is Victoria's principal anti-discrimination legislation. It protects individuals from discrimination, sexual harassment, victimisation, and unequal opportunity. The Act prohibits both direct and indirect discrimination based on various attributes including race, religion, gender identity, disability, age, and many others. It applies across multiple areas of public life such as employment, sport, education, provision of goods and services, and accommodation.
Racial and Religious Tolerance Act 2001 (Vic) – This Act specifically prohibits vilification (behaviour that encourages or provokes hatred, serious contempt, or severe ridicule) on the grounds of race or religious belief or activity in Victoria. It recognises that vilification goes beyond ordinary discrimination and requires specific legislative attention.
Commonwealth Statutes
Several federal statutes provide protection across all of Australia, complementing state-level protections. These Commonwealth laws operate alongside Victorian legislation to create comprehensive discrimination protections.
Age Discrimination Act 2004 (Cth) – This Commonwealth statute makes it unlawful to discriminate against individuals based on their age. It operates throughout Australia and covers discrimination in employment, education, access to premises, provision of goods and services, and other areas of public life.
Disability Discrimination Act 1992 (Cth) – This federal Act makes discrimination unlawful when based on a person's disability. It covers areas including work, education, accommodation, access to premises, clubs and sport, and the provision of goods and services. The Act recognises that people with disabilities face particular barriers to full participation in society.
Racial Discrimination Act 1975 (Cth) – This Act makes it unlawful to discriminate against a person or treat them unfairly based on their race, colour, descent, or national or ethnic origin. As one of Australia's earliest anti-discrimination laws, it provides fundamental protections against racial discrimination.
Sex Discrimination Act 1984 (Cth) – This Commonwealth legislation prohibits discrimination based on sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, or breastfeeding. It applies to areas such as work, accommodation, education, and the provision of goods and services.
Fair Work Act 2009 (Cth) – While primarily employment legislation, this Act contains important anti-discrimination provisions. It prohibits workplace awards from including discriminatory terms and prevents employers from taking adverse action against employees because of attributes such as race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer's responsibility, pregnancy, religion, political opinion, national extraction, or social origin.
Some of these are Victorian statutes (applying only to conduct in Victoria), while others are Commonwealth statutes (applying throughout Australia). An Act of Parliament is a law made by parliament; a bill that has passed through parliament and received royal assent (also known as a statute).
Purpose and objectives of anti-discrimination laws
Anti-discrimination legislation serves several interconnected purposes that work together to promote a fair and equal society. These laws primarily aim to protect people against victimisation, unfair and unwarranted judgment, vilification, and persecution. However, they also serve broader social objectives.
The laws protect people's rights to feel safe in various social settings including workplaces, schools, and sporting fields. When people know they cannot be discriminated against, they can participate more fully and confidently in all aspects of community life.
Anti-discrimination laws help people feel accepted and part of the community by making it unlawful to degrade someone or treat them differently because of a certain attribute. This promotes social cohesion and recognises the value and dignity of every person regardless of their characteristics.
The Right to Equality
The legislation upholds the right to equality, particularly the right to equality under the Charter of Human Rights and Responsibilities Act 2006 (Vic). These laws ensure that everyone has the same rights to equality before the law, regardless of an irrelevant attribute. This means that characteristics like race, gender, or disability should not determine a person's access to opportunities or services when those characteristics are not relevant to the matter at hand.
The laws also aim to protect people by imposing penalties on those who engage in unlawful conduct. In some circumstances, discriminatory conduct is a criminal offence. These penalties serve dual purposes: they punish people for engaging in discriminatory behaviour, and they deter both the offender and others from engaging in similar conduct in the future.
Finally, the legislation provides mechanisms for people to seek compensation for any discrimination that has resulted in loss or damage. This recognises that discrimination causes real harm and that victims deserve to be compensated for their suffering and any economic losses they have experienced.
Elements required to establish liability for discrimination
To successfully bring a discrimination claim, a plaintiff must prove three essential elements. These elements provide a structured framework for determining whether unlawful discrimination has occurred. Understanding each element is crucial for both recognising discrimination and defending against unsubstantiated claims.
The Three Essential Elements 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
All three elements must be proven for a discrimination claim to succeed.
Element 1: The discrimination was based on a certain attribute
The first element requires establishing that the discrimination suffered was because of a certain attribute. The complainant must demonstrate a clear link between the unfavourable treatment they received and one or more of their personal characteristics or attributes.
The specific attributes protected vary between different statutes, with some legislation focusing on very specific characteristics. Under Victoria's Equal Opportunity Act 2010, the following attributes are protected:
- Age – discrimination based on how old or young a person is
- Breastfeeding – unfavourable treatment because a person is breastfeeding
- Disability – discrimination based on physical, intellectual, psychiatric, sensory, or neurological impairment
- Employment activity – unfavourable treatment based on a person's employment status or history
- Expunged homosexual conviction – discrimination based on a historical conviction that has been removed from records
- Gender identity – unfavourable treatment based on how a person identifies their gender
- Industrial activity – discrimination based on trade union membership or participation
- Lawful sexual activity – unfavourable treatment based on legal sexual conduct
- Marital status – discrimination based on whether someone is married, single, divorced, widowed, or in a domestic partnership
- Parental or carer status – unfavourable treatment because someone is a parent or carer
- Physical features – discrimination based on height, weight, size, shape, facial features, hair, birthmarks, or other physical characteristics
- Political belief or activity – unfavourable treatment based on political views or involvement in political activities
- Pregnancy – discrimination because someone is pregnant or may become pregnant
- Race – unfavourable treatment based on racial or ethnic background, nationality, or skin colour
- Religious belief or activity – discrimination based on religious faith, beliefs, or religious practices
- Sex – unfavourable treatment based on being male, female, or intersex
- Sex characteristics – discrimination based on physical, hormonal, or genetic features
- Sexual orientation – unfavourable treatment based on heterosexuality, homosexuality, bisexuality, or asexuality
- Spent conviction – discrimination based on a criminal conviction that is spent under law
- Profession, trade or occupation – unfavourable treatment based on someone's job or professional status
- Personal association with a person with any of these attributes – discrimination because of a relationship or connection with someone who has a protected attribute
When Unfair Treatment Is Not Discrimination
If a person is hurtful to another simply because they dislike them, but the treatment is not based on any protected attribute, this is unlikely to constitute unlawful discrimination. The law recognises that while such behaviour may be unkind, not all unfair treatment amounts to discrimination under the law.
The Equal Opportunity Act makes discrimination unlawful in relation to these attributes because they should be irrelevant in most circumstances.
Example: Irrelevant Attributes in Employment
When two people apply for a position as a lawyer, one being female and one being male, their sex should not be a relevant factor in determining who gets employed. The decision should be based solely on merit, qualifications, and suitability for the role.
Similarly, if two people are members of the same football club, one Muslim and one Buddhist, their religious belief should not influence whether they are selected to play in a game. Selection should be based on skill, fitness, and tactical considerations.
Element 2: The discrimination took place in a particular area or activity
The second element requires establishing that the discrimination occurred in a particular area or activity covered by anti-discrimination legislation. While these laws provide broad protections, they do not cover all possible situations where discrimination might occur, particularly in purely private settings.
Under the Equal Opportunity Act 2010 (Vic), the following areas and activities are protected:
- Job applications – discrimination during the recruitment and hiring process
- Employment – unfavourable treatment in the workplace, including in relation to conditions, opportunities, termination, or treatment of employees
- Membership of industrial organisations – discrimination in relation to trade union membership or participation
- Occupational qualifications – unfavourable treatment in obtaining, renewing, or using professional qualifications or licences
- Education – discrimination in schools, universities, and other educational institutions
- Provision of goods and services – unfavourable treatment when accessing shops, restaurants, professional services, government services, or any other goods or services available to the public
- Sale of property – discrimination in property transactions
- Provision of accommodation – unfavourable treatment when seeking or using rental accommodation, hotels, or other lodging
- Club membership – discrimination in social clubs, sporting clubs, or other membership organisations
- Sport – unfavourable treatment in sporting activities, clubs, and competitions
Limitation: Purely Private Settings
While these areas and activities are broad, they do not extend to purely private settings. For example, if someone is discriminated against in a private home (such as being served food last because of a certain attribute), the person who is discriminated against cannot take legal action under anti-discrimination law, though they may complain. This limitation reflects the law's focus on public life and commercial activities rather than private social relationships.
A practical illustration of this element comes from 2021 legislation addressing religious organisations and discrimination. The Victorian Parliament passed the Equal Opportunity (Religious Exceptions) Amendment Act 2021 (Vic) to specifically prevent religious organisations and schools from refusing to hire people, or terminating employment, based on protected attributes such as sexuality, gender identity, or marital status. The only general exception is where the religious organisation or school can demonstrate that conforming to and upholding its religious beliefs is inherent (of central importance) to the specific job role.
Example: Religious Schools and Employment
A faith-based school might successfully argue that its religious studies teachers need to uphold the school's religious beliefs. However, it would be considerably more difficult to argue that someone employed in an administrative or maintenance position needs to uphold those same religious beliefs, as these attributes are not relevant to the essential functions of such roles.
This legislative change was motivated by concerns about LGBTQIA+ teachers and other employees facing discrimination based on their gender identity, sexuality, and marital status. In one 2019 case, a teacher at a Christian school in regional Victoria commenced civil action claiming she was forced to resign because she refused to accept and uphold the school's "statement of faith" opposing marriage equality (same-sex marriage). The school and teacher settled the dispute in 2020, with the school agreeing to pay an unspecified amount and provide a positive reference.
Element 3: The discrimination caused harm or less favourable treatment
The third element requires proving that the discriminatory treatment caused harm or resulted in the person being treated less favourably than others. This element recognises that discrimination has real and tangible impacts on victims, whether through economic loss, emotional harm, or denial of opportunities.
Harm or less favourable treatment can result from either direct or indirect discrimination:
Example: Direct Discrimination Harm
When a student in school is selected for a public speaking competition and another student is excluded specifically because of their race, this constitutes direct discrimination. The harm experienced may vary depending on the individual but can include:
- Anxiety and stress
- Feelings of rejection and humiliation
- Loss of opportunity to develop skills
- Loss of opportunity to gain recognition
The discriminatory act directly links the person's attribute to the unfavourable treatment.
Example: Indirect Discrimination Harm
Consider a sporting club that implements a rule requiring every person entering the building to first stand and walk up stairs to greet the club president. While this rule appears neutral and applies to everyone equally, it would likely discriminate against people with physical disabilities who cannot stand or walk up stairs.
The harm may manifest as:
- Loss of membership
- Exclusion from club activities
- Feelings of not belonging
- Practical barriers to participation
All of these impacts occur because the person could not comply with a rule that disadvantages people with their particular attribute.
Beyond Practical Consequences
The harm caused by discrimination extends beyond immediate practical consequences. Victims often experience psychological and emotional impacts including stress, anxiety, depression, loss of confidence, and feelings of worthlessness or rejection. These impacts can affect a person's mental health, relationships, career prospects, and overall quality of life.
Case example: unsuccessful discrimination claim
The case of Jusrut v Ensure Recruitment Pty Ltd (Human Rights) [2020] VCAT 126 illustrates how all three elements must be satisfied for a discrimination claim to succeed.
Case Study: Jusrut v Ensure Recruitment Pty Ltd
Background: A man brought an application to the Victorian Civil and Administrative Tribunal (VCAT) – a tribunal that deals with disputes relating to a range of civil issues heard by various lists including the Human Rights List, Civil Claims List, and Residential Tenancies List – against his former employer, claiming discrimination on the basis of his race, marital status, disability, and sexual preference.
Facts: The applicant's employment had been terminated during his probation period. He claimed the employer:
- Made derogatory remarks about his appearance, sexual preference, and marital status
- Required him to use a business photograph in which his skin tone had been lightened
- Denied him training opportunities
- Treated him unfavourably in the allocation of work
Claims: The applicant claimed this treatment was because of his Indian descent, his dark olive-coloured skin, his religion (which requires him to maintain a beard), his gender and sexual orientation, his marital status, his hearing impairment, and his union membership. For example, he claimed the managing director expressed concerns about his beard and requested he remove it, though the managing director denied this claim.
Remedies Sought: The applicant sought lost wages, an apology, damages for embarrassment, humiliation and stress, and costs.
Outcome: VCAT heard the claim over two days. The respondent had legal representation, but the applicant represented himself. The applicant gave evidence but did not call any other witnesses. Ultimately, VCAT was not satisfied that there was any discriminatory conduct by the company, and the application was dismissed.
Key Lesson from This Case
This case demonstrates that merely alleging discrimination is insufficient; the applicant must prove all three elements with appropriate evidence. Simply claiming discrimination occurred is not enough – concrete evidence linking the treatment to a protected attribute is essential.
Limitation of actions
Unlike many areas of civil law, there is no specific time period set out in the Limitation of Actions Act 1958 (Vic) within which a discrimination claim must be commenced. However, complainants must be aware of other time limits that apply depending on whether the claim falls under Victorian or federal legislation.
Discrimination claims under Victorian statutes
For discrimination covered by Victorian statutes like the Equal Opportunity Act 2010 (Vic), complainants should understand the role of the Victorian Equal Opportunity and Human Rights Commission (VEOHRC). The VEOHRC is the Victorian complaints body that provides dispute resolution services for discrimination claims.
12-Month Time Limit for Victorian Claims
Section 116 of the Equal Opportunity Act gives VEOHRC discretion to decline to provide dispute resolution services if the alleged discrimination occurred more than 12 months before the person complained. This creates a practical limitation period of 12 months, though it is not an absolute bar to pursuing a claim.
Importantly, complainants can apply directly to VCAT in relation to the discrimination, regardless of whether they have first complained to VEOHRC. This provides an alternative pathway for resolving disputes, particularly if the 12-month period has expired or the complainant prefers to proceed directly to VCAT.
Discrimination claims under federal statutes
For discrimination covered by Commonwealth statutes, different time limits apply. The Australian Human Rights Commission Act 1986 (Cth) states that a complaint lodged with the Australian Human Rights Commission (the federal complaints body that hears complaints relating to discrimination contrary to federal statutes) may be terminated if it was lodged more than six months after the alleged acts, omissions, or practices took place.
Shorter Federal Time Limit
This six-month limitation for federal discrimination claims is shorter than the 12-month period for Victorian claims. Complainants must therefore act promptly if they believe they have suffered discrimination covered by federal legislation such as the Racial Discrimination Act 1975 (Cth) or the Sex Discrimination Act 1984 (Cth).
Purpose of Time Limits
These time limits reflect the practical reality that discrimination complaints should be addressed relatively quickly. Evidence becomes harder to gather as time passes, memories fade, and the discriminatory conduct may become increasingly difficult to remedy. The time limits encourage prompt action while still allowing reasonable time for complainants to understand their rights and decide whether to pursue a claim.
Defences to a discrimination claim
A defendant facing a discrimination claim has several potential defence strategies available. Initially, the defendant may argue that the plaintiff has failed to satisfy one or more of the three essential elements of discrimination. For example, they might contend that the treatment was not based on a protected attribute, or that it did not occur in a covered area or activity, or that it did not cause harm or less favourable treatment.
Beyond challenging the elements, defendants can rely on four specific defences that, if established, provide lawful justification for conduct that would otherwise constitute discrimination. Understanding these defences is crucial for both potential defendants and complainants assessing the strength of their claims.
Defence 1: An exception allowed lawful discrimination
Anti-discrimination laws recognise that some situations genuinely require different treatment based on protected attributes. These laws include specific exceptions that allow for lawful discrimination in carefully defined circumstances. When a defendant can demonstrate that their conduct falls within one of these exceptions, they have a complete defence to a discrimination claim.
Educational authorities have the right to set and enforce reasonable standards of dress, behaviour, and appearance for students. This exception recognises that schools play an important role in teaching appropriate conduct and maintaining an orderly learning environment. Therefore, if a school implements and enforces uniform codes or appearance standards, it may defend a discrimination claim on the basis that it is legitimately enforcing its dress code. However, schools must make allowances for religious or cultural dress such as hijabs or patkas, and the standards must be reasonable rather than arbitrary or discriminatory in purpose.
Single-sex organisations are permitted under anti-discrimination law. A club can exclude from membership a person on the basis of that person's sex if membership is available only to persons of the opposite sex. This exception allows female-only gyms, men's clubs, or women's clubs to operate without facing discrimination claims from people of the other sex. The exception recognises that sometimes people benefit from spaces where they can interact with others of the same sex.
Sporting competition exceptions acknowledge that physical differences between sexes can be relevant in competitive sports. A sporting club can exclude a person of another sex from participating in a competitive sporting activity if strength, stamina, or physique is relevant to the competition. This exception allows for separate men's and women's competitions in sports where physical attributes significantly affect performance.
Example: Accommodation Exception
Section 58A of the Equal Opportunity Act allows a person to refuse accommodation to children or people with children because of the design or location of the accommodation.
Scenario: Juliet runs the Romeo Hotel in an exclusive location in Daylesford, Victoria. The hotel is especially designed for couples and, because of its design and location, is unsuitable and inappropriate for children.
Defence: Juliet would likely successfully defend a discrimination claim if someone complained that she did not allow their children to stay at the hotel, as the exception for child-free accommodation based on design or location would apply.
Defence 2: An exemption from discrimination laws applied
While exceptions are built into anti-discrimination legislation, exemptions provide another mechanism for lawful discrimination in specific circumstances. Some individuals, groups, and organisations are permanently exempted from discrimination laws, while others can apply for temporary exemptions to undertake particular activities.
Permanent exemptions exist for certain situations. For example, a person can discriminate against another if that discrimination is necessary for the person to comply with their religious beliefs and practices. This recognises the importance of religious freedom in a pluralistic society. As another example, governments can provide benefits to people based on their age without this constituting age discrimination. This allows for age-based benefits for retired people, concessions for seniors, or support programs targeting specific age groups.
Temporary exemptions can be granted for up to five years when necessary to undertake a particular activity. Defendants can apply to VCAT for these exemptions, demonstrating why discrimination is necessary for their specific purpose.
Case Study: Ivanhoe Grammar School Exemption
The case of Ivanhoe Grammar School – Exemption (Human Rights) (Corrected) [2021] VCAT 1452 provides a detailed example of how temporary exemptions work.
Application: In 2021, a Melbourne co-educational private school applied for and received a temporary exemption to Victoria's Equal Opportunity Act to allow it to enrol more female students to better balance the school's male-female student ratio.
Terms of Exemption: Under the exemption, granted for five years until 2026, the school is permitted to:
- Advertise specifically for potential female enrolments
- Structure its waiting list on the basis of sex
- Offer scholarships and bursaries to current and prospective students on the basis of their sex (such as offering more academic and "general excellence" scholarships to talented and deserving female students)
Opposition: VCAT considered four responses opposing the school's application. One response expressed concerns about:
- Practical negative effects on boys who would otherwise be accepted
- Increased travel time and costs for boys to attend another similar private school
- Whether there were enough potential female students to maintain gender balance
Another response argued that the school already had a large number of female students and did not need an exemption to "operate successfully as a school."
Outcome: Despite these concerns, VCAT granted the exemption. Notably, this was one of several exemptions granted to the school since 1999, with a similar exemption granted in 2016. This demonstrates that VCAT can grant renewable exemptions where circumstances justify continued temporary discrimination to achieve a legitimate objective such as gender balance.
Defence 3: Inherent requirements
The inherent requirements defence applies exclusively to allegations of discrimination in employment contexts. It does not apply to other areas or activities covered by anti-discrimination law. This defence recognises that some job roles have essential duties that not all people can perform due to their age or disability.
An employer can successfully defend a discrimination claim by demonstrating that a person, because of their age or disability, cannot carry out the inherent requirements – the essential duties and core functions – of the job. The critical question is whether the attribute prevents the person from performing the fundamental aspects of the role, not merely peripheral or minor tasks.
Example: Inherent Requirements of a Baggage Handler
An inherent requirement of a baggage handler's job at an airport is the ability to lift and move heavy items regularly and repeatedly throughout a shift. Physical strength and the capacity for manual handling are essential to performing this role.
Application of Defence: If a person cannot lift heavy items because of their age or disability, an employer could successfully argue that refusing to employ or continue employing this person does not constitute unlawful discrimination because the person cannot meet the inherent requirements of the position.
Distinguishing Genuine Requirements from Assumptions
Employers must be careful to distinguish between genuinely inherent requirements and preferences or assumptions about what people with certain attributes can do. The requirement must be truly essential to performing the core functions of the role.
For instance, while physical fitness might be an inherent requirement for a firefighter, it would not be an inherent requirement for an office-based administrative position, even if that position happens to be within a fire service.
Obligation to Make Reasonable Adjustments
Employers considering this defence should also be aware of their obligation to make reasonable adjustments to enable people with disabilities to perform a role. If simple modifications to the workplace, equipment, or work practices would allow someone to meet the inherent requirements, the defence may not succeed.
Defence 4: Unjustifiable hardship
The unjustifiable hardship defence is available only to employers facing discrimination claims from employees or job applicants. This defence recognises that while employers should make reasonable efforts to accommodate employees with different attributes, there are limits to what can fairly be expected.
An employer can defend a discrimination claim on the basis that accommodating the employee would cause unjustifiable hardship to the employer. Unjustifiable hardship means it would be extremely difficult, unreasonably costly, or otherwise impractical for the employer to accommodate the employee's needs related to their protected attribute.
Example: Building Accessibility and Unjustifiable Hardship
Imagine an employer operating from a particular building that is not accessible to people with disabilities. The building might be an older heritage structure with multiple floors, narrow doorways, and steep stairs.
Potential Defence: If adjusting the building to allow full accessibility would require extensive structural modifications costing hundreds of thousands or millions of dollars that the employer genuinely cannot afford, the employer may successfully argue that making these adjustments would cause unjustifiable hardship.
However, whether this defence succeeds depends heavily on an assessment of what is fair and reasonable for the employer to do to make adjustments for the employee. Courts and tribunals consider factors such as:
- The nature and extent of the adjustments required
- The financial cost of the adjustments in relation to the employer's size and resources
- The practicality of making the adjustments
- Whether there are alternative, less burdensome ways to accommodate the employee
- The impact on the employer's business operations
When Unjustifiable Hardship Defence Fails
If the adjustments are relatively easy and inexpensive to make, or if the employer has substantial resources, the unjustifiable hardship defence is unlikely to succeed. The law expects employers to make reasonable efforts to accommodate employees and not simply refuse to do so because of minor inconvenience or modest costs.
For instance, if an employee with a disability requires modified work hours, special equipment costing a few thousand dollars, or adjustments to their workstation, and the employer is a medium to large organisation with adequate resources, these adjustments would likely be considered reasonable rather than an unjustifiable hardship.
Possible remedies
A remedy is any order made by a court or tribunal designed to address a civil wrong or breach. Remedies should provide a legal solution for the plaintiff following a breach of civil law by the defendant. In discrimination cases, appropriate remedies aim to restore the plaintiff's rights, compensate for losses suffered, and prevent future discrimination.
People who have suffered injury, loss, or damage due to unlawful discrimination may seek one or more remedies to have their rights restored and receive compensation. The type and combination of remedies appropriate for a particular case depends on several factors:
Factors Affecting Remedy Selection
The type and impact of discrimination – Where discrimination has caused the applicant to lose their job or ability to earn income, they may seek reimbursement for lost income and future economic losses. Where the applicant has been denied access to a service (such as entry to a restaurant or opportunity to play in a sporting team), they may seek a remedy ensuring they can access the desired service in future. Where the applicant has been publicly humiliated by discriminatory remarks, they may seek a public apology as a remedy.
The body or institution involved in dispute resolution – In Victoria, several bodies and institutions can assist with resolving discrimination disputes, including VCAT, the Victorian Equal Opportunity and Human Rights Commission (VEOHRC), and the courts. Each has different processes and powers. VCAT and courts can determine and impose a range of binding remedies. VEOHRC provides dispute resolution services to help parties reach agreement through informal discussion and compromise, but cannot make binding decisions or orders.
Types of remedies available
Damages require the respondent to pay the applicant an amount of money to reimburse and compensate for injury, loss, and damage suffered. Damages can cover both economic losses (such as lost wages, medical expenses, or costs of seeking alternative services) and non-economic losses (such as pain and suffering, embarrassment, humiliation, and psychological harm).
Case Study: Carpenter v Pearly Whites Pty Ltd
In June 2022, VCAT ordered a dental practice to pay its former employee $12,000 to compensate for loss and harm resulting from direct discrimination based on parental status or status as a carer in Carpenter v Pearly Whites Pty Ltd (Human Rights) [2022] VCAT 623.
Background: The applicant worked casually as a dental assistant and was dismissed during the COVID-19 pandemic when her employer decided to hire a new permanent staff member and reduce casual workers from six to five.
Allegations: The applicant alleged she was selected for dismissal because:
- She had broken her foot (outside work hours)
- As a parent, she had needed to alter her casual shifts during the pandemic to care for and supervise her two children during remote learning from home
She had worked at the practice for three years without any previous issues suggesting she would be dismissed.
Outcome: VCAT dismissed the applicant's claim of discrimination based on physical disability (the broken foot) but found she was terminated because of her parental status or status as a carer.
Damages Awarded:
- $10,000 for economic loss (lost income)
- $2,000 for general stress and anxiety suffered
This case illustrates how damages compensate both financial losses and emotional harm caused by discrimination.
Injunctions require the respondent to undertake a specific action or refrain from (cease) a specific action to stop and prevent further injury, loss, or damage to the applicant. Injunctions are particularly useful where discrimination is ongoing or likely to continue without court intervention.
For example, if a landlord repeatedly refuses to rent properties to people of a particular ethnic background, an injunction could order them to cease this discriminatory practice. If a sporting club excludes someone from participation based on their gender identity, an injunction could require the club to allow the person to participate. Injunctions thus provide prospective relief, addressing future conduct rather than just compensating for past harm.
Apologies require the respondent to express their regret and sorrow for their discriminatory behaviour. The apology may be written or verbal, private or public, depending on the circumstances and the nature of the discrimination.
Purpose of Apologies
Apologies serve several important purposes in discrimination cases:
- They acknowledge wrongdoing and validate the victim's experience
- They can provide significant emotional relief and help restore dignity to victims who have been degraded or humiliated
- Public apologies, particularly where discrimination was public, can help restore reputation and demonstrate accountability
However, apologies are most meaningful when genuine; courts and tribunals cannot force someone to feel genuine remorse, only to express an apology.
Undertaking equal opportunity training requires the respondent to complete an education program and course to increase their awareness of their responsibilities regarding discrimination and the impact of discriminatory behaviour. This remedy aims to prevent future discrimination by educating offenders about their obligations and helping them understand why their conduct was harmful.
This remedy is particularly appropriate where discrimination resulted from ignorance, unconscious bias, or lack of understanding rather than malicious intent. By educating the respondent, the training helps ensure similar conduct does not recur. For organisations, equal opportunity training for all staff can help create a more inclusive culture and reduce the risk of future discrimination.
Dismissal or no further action – When resolving discrimination disputes, VCAT and courts can also order that the respondent is not required to take any further action. In cases where the applicant's claim is unsuccessful, the application will be dismissed. This outcome reflects findings that no unlawful discrimination occurred or that the plaintiff failed to prove their case.
These remedies can be combined to provide comprehensive relief. For example, a successful applicant might receive damages to compensate for losses, an injunction preventing future discrimination, and an order requiring the respondent to undertake equal opportunity training.
Possible impacts of a breach
Discrimination based on protected attributes can have significant and wide-ranging consequences for both plaintiffs (victims) and defendants (alleged perpetrators). Understanding these impacts is important for recognising the serious nature of discrimination and the importance of the legal protections in place.
Impacts on the plaintiff
Victims of discrimination often experience multiple interconnected impacts that affect various aspects of their lives:
Public humiliation can be one of the most devastating impacts of discrimination. This occurs when someone is degraded, vilified, or subjected to discriminatory treatment in front of others. For example, a person might be subjected to an inappropriate joke in a workplace setting that discriminates against them based on their racial background. The humiliation is compounded when discrimination occurs in public settings, as witnesses to the discrimination may form negative impressions or the incident may be shared more widely. Public humiliation damages self-esteem, dignity, and social relationships.
Loss of opportunity often occurs as a direct consequence of discrimination. Discrimination can deny people access to employment, education, services, or participation in activities that would otherwise be available to them. For example, a qualified female applicant might be denied a promotion based on her gender, losing not only the immediate position but also the increased salary, career advancement opportunities, and professional development that would have followed. A student might be excluded from a school program based on disability, missing valuable learning experiences. These lost opportunities can have cascading effects on a person's life trajectory, affecting their career, income, skills development, and social connections.
Inconvenience results when accommodation, goods, or services are denied to a person because of a protected attribute. For example, if an accountant refuses to provide professional services to a person of a particular race, that person must spend additional time and effort finding alternative services. They may need to travel further, pay higher costs, or settle for inferior services. When discrimination affects essential services like accommodation or healthcare, the inconvenience can create serious practical problems affecting the person's ability to meet their basic needs.
Effects on mental health can be profound and long-lasting. Discrimination frequently leads to psychological conditions such as depression, anxiety, post-traumatic stress disorder, and other mental health issues. A person experiencing continued discrimination due to a particular attribute may develop depression, struggle with feelings of worthlessness, or experience constant anxiety about encountering further discrimination. The stress of dealing with discrimination, particularly ongoing discrimination, takes a significant toll on psychological wellbeing. Victims may lose confidence, withdraw from social situations, or develop hypervigilance about potential discrimination. These mental health impacts can affect relationships, work performance, physical health, and overall quality of life.
The Compounding Nature of Discrimination Impacts
The compounding nature of these impacts means discrimination rarely affects just one aspect of a victim's life. Loss of employment due to discrimination leads to financial stress (loss of opportunity), may cause public humiliation if the circumstances become known, creates inconvenience in finding new work, and often triggers anxiety or depression (mental health effects).
Impacts on the defendant
Defendants facing discrimination claims, whether ultimately successful or unsuccessful in defending those claims, also experience significant impacts:
Public humiliation can result from the publicity surrounding discrimination claims. Even if a defendant believes their conduct was lawful or justified, facing public accusations of discrimination damages reputation and social standing. Court proceedings involving discrimination claims often attract media attention, particularly when they involve well-known organisations or businesses. The defendant might suffer public humiliation as a result of widely reported court proceedings, with their name and alleged conduct becoming part of public discourse. This reputational damage can be difficult to repair, even if the defendant successfully defends the claim.
Loss of business often follows discrimination claims as a consequence of damaged reputation. In today's socially conscious marketplace, consumers and clients increasingly make decisions based on ethical considerations. A hotel accused of racial discrimination may receive less business because people choose not to support an organisation perceived as discriminatory. Companies facing discrimination claims may find talented employees reluctant to work for them, suppliers unwilling to do business with them, and customers choosing competitors instead. The financial impact of lost business can be substantial and long-lasting, extending far beyond any damages ordered by courts.
Inconvenience results from the need to participate in legal processes. Defendants must attend hearings, mediation sessions, and other proceedings in attempts to resolve the dispute. For example, an employer facing a discrimination claim must attend court hearings, potentially multiple times over many months. This requires time away from work and other responsibilities, potentially involves legal costs for representation, and creates stress and uncertainty during the dispute resolution process.
Even successful defendants who prevail in defending discrimination claims experience these impacts. The accusation itself, regardless of the outcome, creates reputational risks and requires time and resources to address.
Real-World Example: County Court Judge Incident
The incident involving a County Court judge in March 2023 illustrates how discrimination issues can affect defendants' reputations.
What Happened: The judge attracted media attention after telling a woman she could not breastfeed her baby in the courtroom because it would be a "distraction for the jury." The woman was breastfeeding in the public gallery during a criminal trial and left visibly upset and in tears.
Legal Context: Under Victoria's Equal Opportunity Act, it is unlawful to discriminate against a person because of pregnancy or breastfeeding in areas of public life including employment, education, shops, and restaurants. The judge's remarks raised questions about whether equal opportunity laws applied to Victorian courtrooms, which have their own rules (court etiquette) for attendees.
Impact: The incident attracted significant commentary from politicians, parent groups, and legal and human rights organisations. The Minister for Early Childhood and Pre-Prep expressed disappointment, stating "women should never be feeling that they can't feed their child, which is a perfectly natural and pretty basic thing in 2023."
Lesson: This scenario demonstrates how discrimination issues can have reputational impacts on defendants (in this case, the judge and potentially the court system), generate public debate, and raise questions about the application of anti-discrimination laws in various contexts.
Remember!
Key points about discrimination:
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Definition and Types: Discrimination means treating someone less favourably based on attributes like race, religion, disability, age, or gender identity. It can be direct (based on assumptions about what someone can do) or indirect (neutral rules that disadvantage certain groups).
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Three Essential Elements: To prove discrimination, three elements must be established: (1) the discrimination was based on a protected attribute, (2) it occurred in a covered area or activity, and (3) it caused harm or less favourable treatment.
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Legislative Protection: Several statutes protect against discrimination, including the Equal Opportunity Act 2010 (Vic) at state level and acts covering age, disability, race, and sex discrimination at federal level. Time limits for complaints are 12 months for Victorian statutes and 6 months for federal statutes.
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Four Main Defences: Defendants can rely on four main defences: exceptions that allow lawful discrimination, exemptions from discrimination laws, inherent requirements of a job, or unjustifiable hardship (for employers only).
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Available Remedies: Remedies for discrimination include damages (monetary compensation), injunctions (orders to act or stop acting in certain ways), apologies, and requirements to undertake equal opportunity training. The appropriate remedy depends on the type and impact of discrimination.
Key terms to remember:
- Discrimination – unfavourable treatment based on a protected attribute
- Direct discrimination – assumptions about capabilities based on personal characteristics
- Indirect discrimination – neutral rules with unfair effects on certain groups
- Attribute – personal characteristics like race, age, disability, or gender identity
- VCAT – Victorian Civil and Administrative Tribunal, which hears discrimination disputes
- VEOHRC – Victorian Equal Opportunity and Human Rights Commission, which provides dispute resolution services
- Remedy – legal solutions ordered by courts or tribunals to address discrimination
- Vilification – conduct that encourages hatred or serious contempt based on race or religion
Exam technique: When analysing discrimination scenarios, systematically work through the three elements. First, identify the relevant attribute(s) and explain how the treatment related to those attributes. Second, identify the specific area or activity where discrimination occurred (employment, education, provision of goods/services, etc.). Third, explain what harm or less favourable treatment resulted. Consider potential defences the defendant might raise, and discuss appropriate remedies given the specific circumstances and impacts of the discrimination.