Discrimination

What is discrimination?

What is discrimination?

It is discrimination when a person is treated less favourably (worse) than other people because they have a particular characteristic, such as their age, race, sex or disability. It is also discrimination when a person is disadvantaged compared to other people because they have a particular characteristic.

When is discrimination against the law?

If discrimination happens:

(a) because of a characteristic that is listed in the Act (called an attribute in the Act)

and

(b) it happens in an area of activity that is listed in the Act, it is unlawful discrimination.

What if I think I've been discriminated against?

If you think you have been discriminated against, you can make a complaint about it to the Anti-Discrimination Commissioner.

What else is unlawful under the Act?

The Act also makes other behaviour or conduct unlawful discrimination.

You can also complain to the Commissioner if you think you have been affected by this sort of behaviour or conduct.

Are there exceptions to the Act?

The Act does include exceptions and exemptions that mean that conduct that would otherwise be unlawful is okay.

Other actions that are against the law

Other actions that are against the law

It is also unlawful under the Anti-Discrimination Act 1998 (Tas) (the Act) to:

  1. Sexually harass a person.
  2. Victimise a person for making a complaint or participating in the complaint process.
  3. Incite, by a public act, hatred, serious contempt for, or severe ridicule on the basis of race, disability, sexual orientation, lawful sexual activity, religious belief or affiliation, or religious activity.
  4. Publish, display or advertise in a way that promotes, expresses or depicts discrimination or unlawful conduct.
  5. Aid, cause or induce another person to breach the Act.
  6. Engage in any conduct that offends, humiliates, intimidates, insults or ridicules another person on the basis of:
  1. Age
  2. Race
  3. Disability
  4. Sexual orientation
  5. Lawful sexual activity
  6. Gender
  7. Intersex
  8. Gender identity
  9. Pregnancy
  10. Breastfeeding
  11. Marital status
  12. Relationship status
  13. Family responsibilities
  14. Parental status

in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated, intimidated, insulted or ridiculed.

Bullying

Bullying

Bullying usually involves the persistent bad treatment of a person by one or more other people.

Bullying doesn't always involve physical abuse such as punching or kicking. Often bullying involves other nasty behaviour such as verbal abuse, name-calling, nit-picking, threats, sarcasm, exclusion or shunning, or sabotage of a person's work.

These days, bullying is sometimes done through electronic communication systems such as e-mail, texting, social media, online forums, etc.

Some bullying is covered by discrimination laws.  Bullying may be a form of less favourable treatment under the Anti-Discrimination Act 1998 (Tas) (the Act) if it is related to one or more of the personal characteristics ('attributes') listed in the Act.

Section 17(1) of the Act says a person must not offend, humiliate, intimidate, insult or ridicle another person on the basis of:

  • age
  • race
  • disability
  • gender
  • intersex
  • gender identity
  • sexual orientation
  • lawful sexual conduct
  • pregnancy
  • breastfeeding
  • family responsibilities
  • parental status
  • marital status
  • relationship status

where a reasonable person, having regard to all the circumstances, would anticipate the other person would be offended, humiliated, intimidated, insulted or ridiculed.  This can be a form of bullying; it is against the law.

It is important to note that where harassment/bullying happens but does not relate to attributes covered by discrimination law, it is still a serious problem and may be a breach of

  • occupational health and safety laws,
  • workers rehabilitation and compensation laws, or
  • criminal laws relating to assault, threatening behaviour, etc.

Organisations must provide a safe environment for their employees and for people coming into their workplace.

Section 104 of the Anti-Discrimination Act says organisations must take reasonable steps to ensure no member, officer, employee or agent engages in discrimination or prohibited conduct.  Further, it says an organisation that does not comply with this requirement is liable for any breach of the Act committed by any of its members, officers, employees or agents.

See Information for Organisations for more information.

What can you do?

Find out if your organisation:

  • has a current discrimination and/or harassment prevention policy that clearly says what bullying is and that it is not okay;
  • has internal grievance procedures that can be used to deal with bullying;
  • has a Contact Officer you can talk to about possible bullying and to get support and information

Unlawful discrimination

Unlawful discrimination

Discrimination is unlawful under the Anti-Discrimination Act 1998 (Tas) (the Act) if it is discrimination on the basis of one or more of the characteristics listed in the Act (these characteristics are called 'attributes').

Attributes

The attributes listed in the Act are:

  • Age
  • Race
  • Disability
  • Irrelevant medical record
  • Gender
  • Gender identity
  • Intersex
  • Breastfeeding
  • Pregnancy
  • Sexual orientation
  • Relationship status
  • Lawful sexual activity
  • Marital status
  • Family responsibilities
  • Parental status
  • Irrelevant criminal record
  • Religious belief or affiliation
  • Religious activity
  • Political belief or affiliation
  • Political activity
  • Industrial activity
  • Association with a person who has or is believed to have any of the other attributes.

Discrimination on the basis of an attribute is unlawful if it happens in connection with an area of activity that is listed in the Act.

Areas of activity

The areas of activity listed in the Act are:

  • Employment (paid and unpaid)
  • Education and training
  • Provision of facilities, goods and services;
  • Accommodation (all types)
  • Membership and activities of clubs
  • Administration of any law of Tasmania or any State Government program
  • Awards, enterprise agreements or industrial agreements

Information for Organisations

Responsibilities

Responsibilities

All organisations are required to operate without discrimination or other unlawful conduct.

It is essential that organisations operating in Tasmania are aware of and understand their responsibilities under the Anti-Discrimination Act 1998 (Tas) (the Act), which is broader than Federal anti-discrimination law and some other state/territory discrimination laws.

Obligations 'Reasonable Steps'

The Anti-Discrimination Act 1998 ('the Act') places obligations on all Tasmanian organisations/employers to take 'reasonable steps' to ensure that all its members, officers, employees, and agents are protected from discrimination and harassment in the workplace. Any organisation that does not comply with these legal responsibilities is liable for any contravention of this Act.

Section 104 of the Act says, organisations must:

  • ensure that its members, officers, employees and agents are made aware of the discrimination and prohibited conduct to which this Act relates;
  • ensure that the terms of any order made by the Anti-Discrimination Tribunal relating to that organisation are brought to the notice of its members, officers, employees and agents whose duties mean that they may engage in conduct of the kind to which the order relates;
  • ensure that no member, officer, employee or agent of the organisation engages in, repeats or continues such conduct; and
  • take reasonable steps to ensure that no member, officer, employee or agent of the agency/organisation engages in discrimination or prohibited conduct.

There are a number of reasonable steps an organisation can take to ensure their workplace is free from harassment, discrimination they are:

  • adopting an Anti-Discrimination policy and/or an Equal Employment Opportunity (EEO) policy;
  • formulating internal grievance handling procedures;
  • widely publicising policies and procedures to all employees;
  • selecting, appointing and training Contact Officers with support networks;
  • providing anti-discrimination training and/or information to all employees including Managers and Supervisors;
  • ensuring complaints are investigated promptly and confidentially according to set policies and procedures;
  • develop a strategy for dealing with anonymous complaints.

It is important that employers/organisations focus on prevention and appropriate responses when dealing with discrimination and harassment. ‘Reasonable steps’ may vary in accordance with the size of a business. A large corporation’s reasonable expectations are likely to differ to the ‘reasonable steps’ required of a small business.

When responding to a complaint an employer/organisation who has developed good workplace practices should be able to show that it took ‘reasonable steps’ to prevent discrimination and harassment and responded appropriately once it was made aware of the issue.

Workplace Support / Contact Officers

Workplace Support/Contact Officers

The role of the Workplace Support/Contact Officer is an important one which should not be confused with the role of a professional counsellor or mediator.

Workplace Support/Contact Officers

  • are an important first point of contact for people who believe they have an issue in the workplace.  Issues may relate to discrimination, harassment, bullying or other workplace concerns.
  • are staff who are trained to provide other staff with confidential information and support to address discrimination, harassment and/or bullying in the workplace.
  • have access to information about complaint resolution options within and outside the organisation and provide support to persons in making informed decisions about how best to address the grievance.

Duties

Workplace Support/Contact Officers duties may involve:

  • Listening to the individual and acting as a support person
  • Explaining and providing information about what constitutes discrimination, harassment and bullying.
  • Providing information about the options available to deal with the individual’s concerns and the likely results of these
  • Informing the individual of rights under Tasmanian and Federal equal opportunity law
  • Discussing possible strategies the individual can use to deal directly with the other person
  • Informing the individual about counselling and other support services if necessary
  • Referring individuals who decide to make a formal complaint to the appropriate person for investigation
  • Providing general information and copies of organisational equal opportunity policies and complaint procedures to any member of staff
  • Promoting the role of the Workplace Support/Contact Officer throughout the organisation

Knowledge

Workplace Support/Contact officers have knowledge in the following areas.

  • Internal EEO/grievance policies and procedure of an organisation
  • Strategies for dealing with and assisting in the resolution of grievances
  • These policies and procedures will outline exactly how complaints of discrimination, harassment and bullying are dealt with in the particular workplace.

Display their details

It doesn’t matter how many Workplace Support/Contact Officers your organisation has if no-one knows who they are or what they do!  Organisations should display or make available the names and contact numbers of all their trained Workplace Support/Contact Officers.

Confidentiality must be maintained throughout the grievance process.

The Workplace Support/Contact Officer is not employed to be a Workplace Support/Contact Officer, it is an add-on role to their main job/position.

It is never appropriate for a Workplace Support/Contact Officer to ignore a grievance/complaint.  All matters should be dealt with immediately or referred to an appropriate authority.

Workplace Support/Contact Officers may provide information and support to either party involved, they must not take sides or try to act or speak for the complainant or the respondent, this ensures that the conflict is a constructive process that leads to positive change in ways that respect the dignity of everyone involved.

It is completely the complainant’s choice as to which option, or options, they take to resolve their grievance/complaint.

Obligation to take reasonable steps

The Tasmanian Anti-Discrimination Act 1998 (the Act) is pro-active, requiring managers and staff not to discriminate, sexually harass or  victimise others.

Under Section 104 of the Act, every organisation has an obligation to take reasonable steps to ensure its members, officers, employees and agents are aware of and do not engage in, repeat or continue discrimination and prohibited conduct.

Additionally the Act says that an organisation that does not comply with Section 104 is liable for any contravention of the Act committed by any of its members, officers, employees and agents.

Appointing Workplace Support/Contact Officers and training them may be one of the ways to meet Section 104 obligations.

Training

Equal Opportunity Tasmania offers training and networking meetings for Workplace support/contact officers. Training is designed to suit individuals and organisations, delivered in-house or on-site at your place of work.

Selection guidelines

Selection guidelines

The Tasmanian Anti-Discrimination Act 1998 requires employers to create a workplace that is free from discrimination and harassment.

There is nothing to be gained by proclaiming - "We are an equal opportunity employer" then proceeding to appoint, promote or dismiss employees in accordance with rules that have 'always' been applied.

Employers must use non-discriminatory practices and follow non-discriminatory procedures,  not only when someone is in the job, but for all processes including

  • leading up to someone getting a job,
  • job advertisements,
  • position descriptions,
  • duty statements,
  • appointment process etc.

In employment the idea is to recruit the best person for the job.  Removing discrimination from the recruitment process will help employers achieve this result.

Decisions made on the basis of stereotypical attitudes rather than assessing the suitability of the individual applicant may cause an employer to narrow the field and possibly miss out on the best person for the job.

Potential employees who know that your company has good Equal Employment Opportunity (EEO) principles and know that they won't be disadvantaged by irrelevant facts, are more likely to apply for positions in your organisation.  This equals you as the employer getting the best person for the job.

Guidelines

Examine the existing position

  • Have the position duties changed over time?
  • What are the inherent requirements of the position?
  • Break the requirements into 'essential' and 'desirable' criteria

Examine wording in advertisements, application forms and other documentation

  • Do not use stereotypical or discriminatory language or discriminatory requirements

Examine selection processes to ensure procedural fairness

  • Applicants should be informed of the process to be used and given equal opportunity to demonstrate their suitability

Discrimination may occur in all areas of employment.  Check and revise all workplace policies and procedures to ensure your workplace is discrimination and harassment free.

Training

Train your recruitment staff so they are aware of anti-discrimination legislation and your work placement policies.

Equal Opportunity Tasmania provides a training course on Recruitment and Selection.  Check out upcoming dates or contact us to arrange a training session specifically for your workplace.

Workplace policies

Workplace policies

Developing an anti-discrimination and harassment policy

It is important that employers understand why such a policy is necessary and that the policy has the approval and support of senior management.

It may be useful to consult with various interest groups within the workplace. In a larger organisation a policy could be developed by setting up a consultative committee made up of representatives from different areas/sections of the workplace.

Policies must be written clearly and in a format that all staff can understand. Different formats may be required to ensure they are accessible to everyone. Policies must also be available to employees who work offsite or in the field.

All states have their own anti-discrimination legislation.  It is important that organisations who have offices in more than one state inform and train their employees of the anti-discrimination legislation that covers them in the state in which they work.

Policies can be reviewed by our office to ensure they comply with the Tasmanian Anti-Discrimination legislation. There may be an hourly fee associated with this service.

Grievance procedures

Grievance procedures

Grievance procedures should cover all possible grievances that may occur in the workplace e.g. management decisions, promotions, training, transfers, rosters, workplace safety, work environment, harassment and discrimination.

The grievance handling procedure should provide a list of approachable staff that people can contact if they have a grievance in the workplace. These may include contact points such as Supervisors, Contact Officers, Diversity or EEO Officers.

Approximately 70% of Australian workplaces have formal grievance procedures. There are plenty of models available and many organisations are happy to share the procedures they have developed.

Most important elements

The most important elements of a grievance procedure are:

  • Timely responses – complaints should be dealt with as soon as they are received;
  • Sensitivity – ensure both parties feelings are respected throughout the process;
  • Fairness and impartiality – both parties must be afforded substantive and procedural fairness in any investigation. Both sides of the story must be heard. An external investigator can be contracted to undertake the investigation to ensure a fair process;
  • Confidentiality – only parties directly involved in the investigation of the complaint or those involved in making decisions about outcomes should have access to information about the grievance;
  • Allow for appeals – a review by someone who did not handle the investigation should be provided; and
  • Victimisation - Ensure all parties are aware that victimisation against anyone involved in the complaint will not be tolerated and is against the law.

An organisation that has grievance procedures in place has a better chance of a happier, healthier workforce than an organisation that doesn't.

Employers

Employers should make an effort to:

  • circulate policies and related information widely and in accessible formats and appropriate languages;
  • incorporate grievance procedures which are accessible to all staff;
  • develop educational programs (training, leaflets, posters, flyers etc) for all staff about their rights and responsibilities;
  • provide information and support for potential complainants to effect early resolution and positive outcomes; and
  • review policies and procedures on a regular basis.

External grievance options

If internal grievance procedures fail or the complainant is not happy with the outcome they should be advised of their external grievance options.

These may include: