Equal Opportunity Commission

For more information about your rights and obligations under the Equal Opportunity Act 1984, contact by email or phone, or just drop in.

Under the Equal Opportunity Act, a person can be held liable for acts of unlawful discrimination done by an employee or agent, if it can be shown that the person did not take all reasonable steps to prevent the employee or agent from doing the unlawful acts.

Yes, provided the information is relevant to the job and is not used to unlawfully discriminate against the applicant or employee.

If a discriminatory provision is contained within a workplace agreement or enterprise bargaining agreement that I have signed, can I lodge a complaint with EOC?

Yes, provided either agreement was made under a WA, and not a Commonwealth, law.

Does the Act cover functions or interactions between work colleagues that occur out of working hours?

Yes, as long as there is a sufficient connection with the employment, for example, an office party, business travel and accommodation, or use of a work-related facility such as a computer or mobile phone.

I am a single teacher working in a remote area. I have to share a house with other colleagues who are single, although I would prefer to live on my own. A married colleague who has children has been allocated a house to live in. Is this discrimination on the ground of my marital status?

Not necessarily. The Act allows employers to provide different standards of accommodation to employees in accordance with the size of their household where it is unreasonable to expect the employer to provide all employees with the same standard of accommodation.

My employer provides a travel allowance for the spouses of married employees when they are travelling away, but does not provide such an allowance for my de facto spouse. Is this discrimination?

Yes, this would amount to discrimination on the ground of marital status.

Can I make a claim for unfair dismissal in an industrial tribunal and under the EOA if the reasons for my dismissal include unlawful discrimination?

There is nothing under the Equal Opportunity Act that prevents a person also making an application for unfair dismissal to the WA Industrial Commission. However, any financial award received in the Industrial Commission would be taken into account in the assessment of any compensation under the Equal Opportunity Act.

Can employers require that employees be of the same religion?

In some circumstances. There are some exceptions to the prohibition against religious discrimination in employment. These are:

Employers who employ someone to perform domestic duties in their own home.
An employer that employ 5 or less people.
The employer is private educational authority or religious body providing a health related service where the duties relate to participation by the employee in religious observance.
The employer is an educational institution conducted in accordance with particular religious beliefs and the discrimination is in order to avoid injury to adherents of the religion.

Do I have to provide details of my religion when applying for employment with religious organisations?

No, unless the employer is claiming that one of the exceptions apply. However the employer will have to prove this if there is a complaint of religious discrimination.

Do I have to disclose to my employer or prospective employer that I have an impairment?

An employee, or a person applying for a job, may be required under other State legislation to inform the employer whether or not he or she has a disability. It is unlawful, however, under the Equal Opportunity Act to use that information in a way that discriminates against the employee or applicant, for example, by simply assuming that the person cannot do the job.

Can I refuse to employ someone with an impairment if I think that he or she cannot do the job?

It is not unlawful for an employer to refuse to employ a person with an impairment in certain circumstances. The employer must have taken all reasonable steps to obtain the relevant and necessary information about the impairment. If the employer, after considering the information, reasonably concludes that the applicant would either be unable to carry out the work required, or, in order to carry out the work, would require services or facilities that would impose an unjustifiable hardship on the employer, then it will not be unlawful to refuse to employ the applicant.

For employees with family responsibilities, are employers required to make part-time work an option?

There is no automatic obligation to make part-time work an option for employees with family responsibilities, however, employers must reasonably consider and, wherever possible, accommodate an employee's request to work part-time because of his or her family responsibilities.

If I have family responsibilities, can my employer make me do shift work?

Yes, if the employer is able to show that the circumstances of both the employer and the employee have been properly considered, and it is still not reasonably possible to permit the employee to work in his or her preferred arrangement.

Can my employer lawfully dismiss me because I took a day off work to look after my sick child?

No. It is unlawful to dismiss an employee for the reason that she or he took time off work to look after a sick relative, in circumstances where the employer would not take such action if the employee was absent for some other reason acceptable to the employer, for example, if the employee was sick.

Can my employer dismiss me because I am pregnant?

Dismissing an employee simply because she is pregnant is unlawful, unless the employer can show that the dismissal was reasonable in the circumstances. This does not mean that the employer can make assumptions about what duties the pregnant employee can and cannot do.

Can I be transferred to safer duties if I am pregnant?

Employers must make the workplace safe for all their employees and not simply assume that a workplace cannot be made safe for a pregnant employee. If the workplace has been made safe generally but legitimate concerns remain about pregnant employees in particular, then it may be reasonable in the circumstances to remove pregnant employees from a hazardous environment.

Is mandatory retirement at a certain age unlawful?

Yes, unless the mandatory retirement age is contained in another State Act that was already in force when the Equal Opportunity Act was amended to include unlawful discrimination on the ground of age. In addition, it is not unlawful to require a person to retire at a certain age if he or she holds a position under one of the Acts expressly referred to in the Equal Opportunity Act.

Can employees over a certain age be offered more generous severance payments or retirement packages?

In some cases, it would not be unlawful to make more generous payments to employees over a certain age if it can be shown that such payments are a measure intended to offset any added disadvantage that those older employees are likely to experience because of their age.

Would it be unlawful for a service provider that provides services only to persons of a particular race to advertise a job vacancy stating that only persons of that particular are race eligible to apply for the position?

No, if the employer can show that the most effective way to provide those services is by employing someone of that particular race in the position.

What if sexual harassment occurs at an after-hours function?

Is the employer vicariously liable? Sexual harassment is unlawful in employment, even at an after-hours function, provided the function has sufficient connection with the employment. An employer may still be vicariously liable for sexual harassment after-hours, as is the case for harassment that occurs during work hours.

Is it sexual harassment if a male in my workplace refers to me as "girl" or "love"?

In order to be unlawful, unwelcome comments or conduct must be of a sexual nature. Words such as 'girl' or 'love' are not usually sexual, but can become so if they are said in combination with other acts or comments of a sexual nature.

Can a male employee lodge a complaint of sexual harassment by a female?

Yes. It makes no difference what sex you are, provided the conduct or comments complained of are of a sexual nature.

Only women can take maternity leave. Isn't that unlawful discrimination?

No. The Equal Opportunity Act does not make it unlawful to discriminate against a man on the ground of his sex by reason only of the fact that rights or privileges have been granted to women in connection to pregnancy or childbirth.

On what basis can a position be advertised as 'female applicants only'?

It is not unlawful under the Equal Opportunity Act to advertise a position as 'female only' where it is a genuine occupational requirement to be female, for example, a shop assistant involved in the fitting of women's clothing.

Do job advertisements that encourage applications from women, and people of Aboriginal and Torres Strait Islander descent, discriminate unlawfully by only encouraging applications from the two target groups?

No, provided that it can be demonstrated that the advertised position is a special measure intended to provide equal opportunities in employment to the target groups.

When recruiting staff, can employers discriminate on the basis of a person's physical appearance?

Physical appearance is not itself a ground covered by the Equal Opportunity Act, but if the discrimination is because of a characteristic that relates to one or more of the grounds under the Act, then it will be unlawful.

Yes, provided that the reference to "mature" is not another way of describing an older person.

Can I advertise for a person with a minimum length of experience, eg three years?

Employers should avoid any reference to a minimum length of experience in job advertisements, as this kind of requirement often leads to indirect discrimination (see Discrimination). Highly suitable job applicants may not be able to demonstrate the necessary experience if they have been unable to get it in the past because of age, sex, race, impairment, or because of another attribute recognised under the Equal Opportunity Act. An employer who decides not to employ someone on the basis of that person's length of experience is at risk of breaching the Act.

Do I have to get an exemption from the Tribunal if I want to specifically recruit women or indigenous people, or people with an impairment, for a position that I consider falls within the exception of "genuine occupational qualification", or which is a "measure intended to achieve equality"?

No, provided that either one, or both, of these exceptions under the Equal Opportunity Act applies to the position. An exception under the Act, however, does not prevent a person from lodging a complaint of unlawful discrimination.

My child is being bullied and harassed at school by other children - is this unlawful discrimination?

No - the Equal Opportunity Act does not make bullying that is not related to any ground under the Act unlawful.

Can my child be excluded from a school or placed further down the wait list because he/she is not of the same religion as the school?

Yes - Under the Equal Opportunity Act it is not unlawful for an educational institution conducted in accordance with a particular religion to discriminate in favour of persons of the same religion.

Yes, under the WA Act if it is by a member of staff to another member of staff or by a member of staff to a student.

Are institutions such as hospitals and schools liable for the actions of students/clients?

The institution is not liable for the actions of anyone unless that person is an employee or agent of the institution. However, there may be some occasions where a failure to protect an employee from the actions of customers/students results in unlawful discrimination by the institution itself.

My daughter has an intellectual impairment. Can a school refuse to accept her as a student?

No, unless the educational authority in charge of the school can show that the student seeking admission would require services or facilities not required by students who do not have the impairment, and to provide them would impose unjustifiable hardship on the authority.

Goods and services

Is it age discrimination if people under 18 are not allowed to buy alcohol or cigarettes?

No, these prohibitions are contained in legislation. Anything done in accordance with the provisions of another Act is exempt from the prohibition against age discrimination.

Can a nightclub refuse me entry because I am an Aboriginal person simply because they had a problem with some previous customers who were Aboriginal?

No, the club can not assume that because you are the same race as customers who caused trouble that you will also cause trouble. This is unlawful racial discrimination.

Can restaurants advertise as 'adults only'?

No.

Is it unlawful for a service provider to provide its services only to persons of a particular race?

No, but the service provider must show that the service is intended to ensure that those persons have equal opportunities with other persons in respect to the services being offered.

Accommodation

I am disabled and use a wheelchair, but my landlord won't give me permission to make some necessary modifications to my house. Is this unlawful?

It is unlawful under the Equal Opportunity Act for a landlord or agent to refuse a person with an impairment to make reasonable alterations to accommodation where:

that person has undertaken to restore the accommodation to its original state upon leaving;
it is likely in all the circumstances that the person will perform the undertaking;
it is reasonably practical to restore the accommodation to its original state;
no alterations to the premises of any other occupiers are required; and
the alteration is at the occupier's expense

Is mandatory retirement at a certain age unlawful?

Can holiday resorts advertise as 'adults only'?

No.

Access to Places

Can a nightclub refuse me entry because I am an Aboriginal person simply because they had a problem with some previous customers who were Aboriginal?

No, the club can not assume that because you are the same race as customers who caused trouble that you will also cause trouble. This is unlawful racial discrimination.

Can restaurants advertise as 'adults only'?

No.

Can a pub or nightclub let women in wearing sleeveless tops but ban men from wearing sleeveless tops?

Yes, provided that the ban is part of a dress code based on a reasonable assessment of current community dress standards for men and women.

Clubs

Can clubs state that they are 'women only' and 'men only'?

Yes, there is an exception under the Equal Opportunity Act that allows for single sex clubs.

Can clubs exclude people on the basis of their age?

Yes if the principal object of the club is to provide benefits for people of a particular age.

I was sexually harassed by a fellow member of a club. Is that unlawful discrimination?

Not under the WA Equal Opportunity Act. The Act makes no provision to make unlawful sexual harassment between members of a club.

Is it unlawful for 'singles' clubs to exclude couples?

Yes it is unlawful for a club to refuse membership because of a person's marital status.

Is it unlawful to have single sex sporting teams?

It is not unlawful to allow only one sex to compete in a sporting activity if the players are 12 years of age or older, and where the strength, stamina, and physique of the competitors is relevant.

Sport

Is it unlawful to have single sex sporting teams?

It is not unlawful to allow only one sex to compete in a sporting activity if the players are 12 years of age or older, and where the strength, stamina, and physique of the competitors is relevant.

Is it unlawful discrimination when gyms and physical activity classes only allow women to participate?

No, provided that it can be shown that the exclusion of men is a measure intended to ensure that women have the same opportunities as men in respect to these services.

Superannuation and Insurance

Can insurance companies charge drivers over or under certain ages higher premiums?

Yes, provided they can justify it by actuarial or other data that shows drivers of a particular age are at greater risk of having an accident than other drivers.

My workers compensation was cut off when I turned 65. Is this unlawful discrimination?

Not if it was done pursuant to the provisions of the Workers Compensation and Rehabilitation Act. Something done in relation to age discrimination pursuant to the provisions of another Act is exempt.

Other Grounds/Areas

Is it against the law to discriminate against someone because of their sexual orientation?

Yes. From 21 September 2002 onwards, it is unlawful to discriminate against a person on the ground of his or her sexual orientation. The definition of "sexual orientation" under the Equal Opportunity Act includes homosexuality, lesbianism, bisexuality and heterosexuality.

Is discrimination in advertisements unlawful?

It is unlawful to advertise an intention to do something that would be unlawful discrimination under the Equal Opportunity Act.

Can someone make discriminatory comments in letters to the editor?

Under the State Equal Opportunity Act it is not unlawful for a person to make discriminatory comments in letters to an editor.

Does the Act cover arguments between neighbours?

No the Equal Opportunity Act only makes discrimination unlawful in public life not private

Can I be discriminated against because I am a smoker?

Yes - it is not a ground under the Equal Opportunity Act.

Are institutions such as hospitals and schools liable for the actions of students/clients?