When is discrimination unlawful?

Discrimination is unlawful when it is based on one or more of the grounds, for example, sex, and occurs in an area of public life, for example, employment, set out in the Equal Opportunity Act.

What is direct discrimination?

Direct discrimination is when a person treats another person less favourably than he or she treats, or would treat, someone else in the same or similar circumstances, because of one or more of the grounds set out in the Equal Opportunity Act.

What is indirect discrimination?

Indirect discrimination occurs when a rule, practice or policy that appears on its face to be neutral in effect has a disproportionate and disadvantageous impact on individuals who share a particular attribute (eg. family responsibility) recognised as a ground under the Equal Opportunity Act.

What are "special measures intended to achieve equality"?

It is lawful to discriminate in favour of a group of people on the ground of their sex, marital status, pregnancy, race, family responsibility or status, impairment, or age, in order to provide those people with the same opportunities as other people, in the areas of life covered by the Equal Opportunity Act.

What factors are taken into account when deciding what constitutes 'unjustifiable hardship'?

It is usual for the following factors to be considered when determining whether or not an unjustifiable hardship would be imposed on a person providing goods or services, accommodation, or employment to a person with an impairment: -

What is the difference between an 'exception' and an 'exemption' under the Equal Opportunity Act?

An 'exception' is when the Equal Opportunity Act specifically makes it lawful to do something that would otherwise be unlawful.

An 'exemption' is when a person applies to the State Administrative Tribunal for permission to do something that is intended to provide equal opportunities to a particular group of people, on a ground covered by the Equal Opportunity Act. If the Tribunal grants the exemption, then a complaint of unlawful discrimination cannot be made against that person during the time that the exemption applies.

Is the service free?

Yes.

How long does the conciliation process take?

That depends on the willingness of the parties to co operate in the process and the outcomes the complainant is seeking. Some complaints are conciliated very quickly, others take many months.

What sort of outcomes can a complainant seek?

A complainant can seek any outcome that he or she believes will resolve the complaint. These may include:

Who is the respondent?

The person or organisation responsible for the unlawful discrimination or harassment. In many cases that will be the employer of the person who actually discriminated.

Can people under 18 lodge complaints?

Yes. If they are too young to lodge it on their own behalf a parent or guardian can lodge on their behalf.

How can I be assisted to make a complaint if I do not speak English?

A complaint can be written in any language. The Commission will have the complaint translated. The Commission will arrange for an interpreter for face to face or telephone interviews.

Can I lodge a group complaint?

Yes, you can lodge what is called a representative complaint if you are complaining about discrimination that has occurred to you and a large group of people. However, if the matter is referred to the State Administrative Tribunal, the Tribunal makes the decision as to whether the matter is a representative complaint. Compensation cannot be awarded in relation to a representative complaint.

Can a respondent be compensated by the complainant if the complaint is found to have no substance?

No, there is no provision for this under the Equal Opportunity Act.

Do I have to pay costs or can I recover costs in EOC proceedings?

There is no provision for payment or recovery of cost in relation to the Commission's investigation process. If the matter is referred to the Tribunal the general rule is that no costs are recoverable, except in exceptional circumstances where a successful party can show there are special circumstances justifying an order for costs.

Can an organisation or advocate lodge a complaint on my behalf?

No, the Act only provides for an aggrieved person to make the complaint, except where a person has a disability and cannot write or sign his or her name. In those circumstances a person authorised by the complainant can lodge on his or her behalf, or, where the person cannot give authorisation because of a disability, by a person approved by the Commissioner. A Trade Union can lodge a complaint on behalf of a member.

Is GST added to the compensation payment?

No, it is not a payment for a service.

Can I e-mail my written complaint to the Commission?

Yes. However we will ask for a postal address for future correspondence for reasons of security and confidentiality.

Can I ask someone else to write my complaint if I can't write in English or if I have difficulty writing?

Yes, provided you understand what has been written for you, and sign it or make your mark.

How much detail should I include in my complaint?

As much detail as possible relevant to the complaint. This should include dates and times, the names of the people involved in the alleged discrimination, and the names and addresses of any witnesses.

What happens if I make a reasonable offer to conciliate and the complainant refuses?

The Commissioner has no power to force a complainant to conciliate even if an offer appears reasonable. If a complaint does not conciliate and the complainant wishes to continue with the complaint, the Commissioner is obliged to refer the complaint to the State Administrative Tribunal for determination.

If I want to let the Commissioner know about something that has happened but don't want to make a complaint myself will the Commissioner take action?

No, the Commissioner can only investigate a matter if she receives a complaint.

• the nature of the benefit or detriment likely to be experienced by any person concerned;
• the nature of the impairment of the person concerned;
• the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship·

Jurisdiction of the Equal Opportunity Act

What is the difference between the Equal Opportunity Commission and the State Administrative Tribunal?

Sex

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.

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.

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.

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.

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.

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.

Sexual Harassment

What is unlawful sexual harassment?

Sexual harassment under the Equal Opportunity Act occurs when a person makes an unwelcome sexual advance or request for sexual favours, or engages in other unwelcome conduct of a sexual nature, towards another person and that person is disadvantaged, or has reasonable grounds for believing he or she will be disadvantaged, by taking objection. Sexual harassment is unlawful in the areas of employment, education, and accommodation.

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.

Do I have to say "No" to sexual advances for it to be unlawful sexual harassment?

No. An objection to sexual advances or conduct of a sexual nature does not have to be verbally expressed for sexual harassment to be unlawful.

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.

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 sexual harassment in school or university unlawful?

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.

Race and Racial Harassment

How is 'race' defined under the Equal Opportunity Act?

The definition of 'race' in the Act includes colour, descent, ethnic or national origin, and nationality.

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.

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 race are 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 is unlawful racial harassment?

Racial harassment is unlawful under the Equal Opportunity Act when a person threatens, abuses, insults or taunts another person because of his or her race, and that other person is disadvantaged, or has reasonable grounds for believing that he or she will be disadvantaged, by taking objection. Racial harassment is unlawful in the areas of employment, education, and accommodation.

Is it racial harassment calling someone a 'Pom'?

In order to be unlawful racial harassment, comments or words must be in the form of threats, taunts, insults, or abuse on the ground of a person's race. Calling someone a 'Pom' by itself is not considered to be racial harassment, unless it said in such a way, or in combination with other acts or comments, that make it so.

What is unlawful 'racial vilification'?

Racial vilification, or offensive behaviour based on racial hatred, is unlawful under the Commonwealth Racial Discrimination Act. It refers to any act that is done in public which is reasonably likely to offend, insult, humiliate, or intimidate another person, or group of persons, and the act is done because of the race of that person or group. A complaint under the Racial Discrimination Act must be lodged with the Commonwealth Human Rights and Equal Opportunity Commission.

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.

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.

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:

Can an organisation or advocate lodge a complaint on my behalf?

No, the Act only provides for an aggrieved person to make the complaint, except where a person has a disability and cannot write or sign his or her name. In those circumstances a person authorised by the complainant can lodge on his or her behalf, or, where the person cannot give authorisation because of a disability, by a person approved by the Commissioner. A Trade Union can lodge a complaint on behalf of a member.

Can I ask someone else to write my complaint if I can't write in English or if I have difficulty writing?

Yes, provided you understand what has been written for you, and sign it or make your mark.

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.

Can employers ask about my medical history?

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

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:

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.

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.

Political Conviction

Does union activity fall within the definition of discrimination on the ground of political conviction?

No. The Supreme Court of Western Australia has decided that trade union activity did not come within the definition of "political conviction".

Employment

What is vicarious liability?

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.

Can employers ask about my medical history?

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.

Pre-employment

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.

Can I advertise for a "mature person" for a job?

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.

Education

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.

Is sexual harassment in school or university unlawful?

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.