Discrimination and victimisation

Types of unlawful discrimination

Under anti-discrimination laws, there are two types of unlawful discrimination: direct discrimination and indirect discrimination.

Direct discrimination

Under the Equal Opportunity Act 2010 (Vic), direct discrimination is when someone treats you badly or unfavourably, or tries to treat you unfavourably, because of your protected characteristic.

For example, a person with schizophrenia is refused accommodation in a caravan park because the manager believes that a caravan park is not a suitable place for a person with a mental illness to live.

Under Commonwealth anti-discrimination laws, you need to show that the person has treated you less favourably than they would treat someone in similar circumstances who does not have the same protected characteristic. This means that you need to show that:

• the reason, or one of the reasons, that the person treated you badly is because of your protected characteristic such as your race, sex or disability, and
• the person treats, or would treat, others without your protected characteristic better than they treated you in similar circumstances.

Indirect discrimination

Indirect discrimination is when an unreasonable requirement, condition or practice disadvantages people with certain protected attributes.

With indirect discrimination, you need to be able to show that even though you are being treated the same as everyone else, you are put at a disadvantage because of your protected attribute. You also need to show that the requirement is not reasonable in the circumstances.

For example, an employer requires everyone to be at work by 8.20 am every morning. This is a requirement that disadvantages employees with parent/carer responsibilities, who have to drop their children off at school before attending work. This would be an unreasonable condition if it is not necessary and the only reason for this requirement is that staff meetings 'have always been held at 8.30 am'.

Victoria’s discrimination laws

In Victoria, it is against the law for someone to discriminate against you because of certain protected characteristics. These are:

• age
• breastfeeding
• gender identity
• disability (which also includes discrimination based on having an assistance aid supporting a person with disability – this includes equipment like a wheelchair or cane, an assistance dog or a person providing assistance or services to them)
• employment activity (this means asking your employer about your entitlements, or raising a concern that you are not receiving your entitlements)
• industrial activity
• profession, trade or occupation
• lawful sexual activity
• marital status
• status as a parent or carer
• physical features
• pregnancy
• race
• sex
• sexual orientation
• sex characteristics (physical features relating to sex)
• political or religious beliefs or activities
• an expunged homosexual conviction (a person who has successfully applied to have their historic homosexual conviction removed from the record)
• a spent conviction (some kinds of convictions may be ‘spent’, and not appear on a person’s criminal record, if they do not reoffend within a certain period)
• personal association with anyone who has any of these characteristics.

These are often referred to as 'protected attributes' or 'protected characteristics'.

The Victorian Equal Opportunity and Human Rights Commission is responsible for overseeing Victoria's discrimination laws. See their website for a full list of the areas and types of discrimination or call the commission's free enquiry line on 1300 292 153.

Commonwealth discrimination laws

There are also Commonwealth discrimination laws that protect people’s rights in public life and when dealing with Commonwealth Government departments and agencies.

There are specific Acts that prohibit discrimination on the grounds of:

• age: the Age Discrimination Act 2004
• sex, pregnancy, marital status, family responsibilities, sexual orientation, gender identity, intersex status and relationship status: the Sex Discrimination Act 1984
• race, nationality, ethnicity, descent: the Racial Discrimination Act 1975
• disability: the Disability Discrimination Act 1992
• sexual preference, trade union activity, political opinion, religion or social origin (in employment only).

The Australian Human Rights Commission is responsible for overseeing Commonwealth anti-discrimination and human rights laws. See their website for information about discrimination on the grounds of age, sex, race, disability and other protected rights.

Discrimination under the Fair Work Act

The Fair Work Act 2009 (Cth) also aims to protect employees from discrimination at work. It is against the law for an employer to take ‘adverse action’ (for example, dismiss you from your employment or offer you fewer shifts) ) because of your protected attribute.

The Fair Work Commission is responsible for hearing claims against employers under the Fair Work Act, including discrimination in the workplace. The Fair Work Ombudsman gives information and advice about workplace rights and obligations.

Victimisation

People are often concerned about making a complaint about discrimination if they have a continuing relationship with the person responsible (like an employer). They often worry they will be victimised (treated badly or unfairly) if they make a complaint.

However, victimisation is also unlawful under discrimination laws.

Victimisation is when you are disadvantaged in some way, or threatened with a disadvantage, because you have:

• made a complaint of discrimination or sexual harassment
• provided information or documents about a complaint of discrimination or sexual harassment
• asserted your rights, or supported someone else’s rights, under anti-discrimination laws
• alleged that a person has acted unlawfully under anti-discrimination laws.

You should get legal advice if you think you are being, or have been, victimised for making a complaint.

Discriminatory questions

Generally, it is unlawful to ask a person for information about their protected attributes (for example, disability, race, pregnancy) if this information could be used in a discriminatory way.

For example, during an interview an employer asks a female job applicant whether she has parenting responsibilities 'that keep her busy'. The applicant tells the employer that she has two children in primary school. She does not get offered the permanent full-time position, despite being the best person for the role. Instead, she is only offered a part-time contract position for three months.

If you think this has happened to you, get legal advice.

Discrimination law exceptions

Some forms of discrimination are not against the law. There are exceptions which are like ‘defences’ to discrimination. Some examples of exceptions are where:

• some services or benefits are only given to people with protected characteristics, such as people with a disability
• the action taken is necessary to protect the health and safety of a person or the general public
• other laws which allow discrimination, like only employing people as drivers if they are old enough to hold a licence.

Read more about exceptions.

Exemptions that apply to equal opportunity laws

Under the Victorian law, exemption applications are considered by the Victorian Civil and Administrative Tribunal. Exemptions from the Equal Opportunity Act can be granted for a period of up to five years.

To apply for a temporary exemption from the operation of the Commonwealth Sex Discrimination Act, the Disability Discrimination Act or the Age Discrimination Act, a duty holder must apply to the Australian Human Rights Commission.

Make a complaint

If you think you have been discriminated against in an area that is covered by these laws you can make a complaint with the relevant commission.

Keep in mind that some of your options have a limit of 21 days, so it is important to get advice as soon as possible after the discrimination occurs.

Other support

Find out how you can get other support for discrimination.