The Right to a Discrimination-Free Workplace | Australian Human Rights Commission

Clipped from: https://humanrights.gov.au/our-work/right-discrimination-free-workplace

1. Introduction

The prohibition on discrimination in employment is a relatively recent, but now well-established, feature of the Australian legal environment. Laws prohibiting discrimination in the workplace in Australia date back to 1966 when South Australia introduced the Prohibition of Discrimination Act 1966 (SA), to prohibit discrimination on the grounds of race in aspects of employment and in the provision of goods and services.^[1] Nine years later the Commonwealth introduced the Racial Discrimination Act 1975 (Cth) (‘RDA’), which prohibits discrimination not only in employment,^[2] but in public life generally.^[3] Over time, the protection from discrimination has been extended federally by the Sex Discrimination Act 1984 (Cth) (‘SDA’), the Disability Discrimination Act 1992 (Cth) (‘DDA’) and most recently the Age Discrimination Act 2004 (Cth) (‘ADA’). Each of the States and Territories have also introduced their own protections which overlap with and extend the protection afforded under the federal regime.^[4] Focusing on the federal jurisdiction, this paper looks at how Australia’s patchwork of discrimination laws operates to create what might be called broadly a ‘right to a discrimination-free workplace’. The paper outlines what discrimination laws mean in practice for employers and employees. In particular, it considers the extent to which employers are required to provide a workplace that is not only free from obvious forms of discrimination and harassment but also one that accommodates diversity and the needs of, in particular, women with childcare responsibilities and people with disability. ^Top

2. Overview of prohibitions on discrimination and harassment in employment

(a) Scope of the unlawful discrimination prohibitions Discrimination is prohibited by federal unlawful discrimination laws in all stages of employment:^[5]

• advertising for positions;^[6]
• arranging interviews;
• selecting the successful candidate;
• the terms upon which employment is offered;
• the conditions of employment;
• access to promotions, training and benefits;
• dismissal; and
• subjecting an employee to ‘any other detriment’.

(b) Prohibited grounds The grounds upon which discrimination is made unlawful under the federal regime^[7] are:

• race, colour, descent^[8] or national or ethnic origin;^[9]
• sex, martial status, pregnancy or potential pregnancy;
• family responsibilities;^[10]
• disability;^[11] and
• age.

(c) Direct and indirect discrimination In general terms, the unlawful discrimination Acts define discrimination as being either direct or indirect, although those terms are not used in all of the Acts.

• Direct discrimination is sometimes also referred to as ‘disparate treatment’ discrimination. It occurs when one person is treated less favourably on the basis of an attribute (such as sex, race or disability) when compared with how a person without the attribute would be treated in the same or similar circumstances.^[12]
• Indirect discrimination is sometimes also referred to as ‘disparate impact’ discrimination. In general terms, it occurs where there is a requirement or condition that applies generally, but has the effect of disadvantaging a particular group and is unreasonable in all of the circumstances.^[13]

(d) Harassment and racial vilification The SDA specifically prohibits harassment in the workplace by employers, fellow employees and other ‘workplace participants’ including partners, commission agents and contract workers.^[14] Sexual harassment is defined, in general terms, as unwelcome sexual conduct that a reasonable person would anticipate would offend, humiliate or intimidate the person harassed.^[15] The DDA prohibits harassment in the workplace ‘in relation to’ a person’s disability or the disability of an associate.^[16] The RDA prohibits ‘offensive behaviour based on racial hatred’ (commonly referred to as ‘racial vilification’), being public acts done because of race that are offensive, insulting, humiliating or intimidating.^[17] (e) Exemptions There are, broadly, three types of exemptions available under the discrimination Acts: ‘special measures’ exemptions, general exemptions and temporary exemptions. ‘Special measures’ ‘Special measures’ are things done by way of affirmative action that may confer a benefit upon a group that has been historically disadvantaged in order to achieve substantive equality. Each of the Acts has its own definition of ‘special measures’.^[18] Relevant examples include:

• The provision of Abstudy to Indigenous students;^[19] and
• Providing for 50% representation of women in union executive positions.^[20]

General exemptions General exemptions under the discrimination Acts cover a range of areas. The RDA has very limited exemptions, none of which are immediately relevant to the employment context.^[21] The SDA includes exceptions that allow certain types of discrimination in certain areas.^[22] Most relevant to the employment context is the exemption in s 30 that allows discrimination in employment on the grounds of sex on the basis of ‘genuine occupational requirements’. Section 30(2) provides some examples of ‘genuine occupational requirements’, including dramatic performances or entertainment where a role requires a person of the relevant sex,^[23] positions involving fitting clothing^[24] or conducting searches of clothing or bodies,^[25] positions that require entry of lavatories used by members of one sex while in use^[26] or areas where people of one sex will be in a state of undress^[27] and positions requiring a person to live on premises with persons of a particular sex where there are no reasonable alternatives.^[28] Note, however, that there are no exemptions for sexual harassment. The DDA also includes a range of general exemptions.^[29] Most relevant to the employment context is the ‘inherent requirements’ defence that attaches to each of the prohibitions on discrimination in employment,^[30] against commission agents,^[31] against contract workers,^[32] in partnerships,^[33] in qualifying bodies^[34] and by employment agencies.^[35] The effect of the defence is that it is not unlawful to refuse to employ (engage a commission agent etc) or terminate employment (or other relevant relationship) if a person is unable to carry out the inherent requirements of the relevant position or work because of his or her disability. In most cases to rely on the defence, a respondent will need to show that a person was unable to carry out the inherent requirements of the position even with assistance that the employer could have provided (without incurring ‘unjustifiable hardship’).^[36] The DDA also contains an ‘unjustifiable hardship’ defence for most areas of public life in which discrimination is otherwise unlawful: it is generally a defence to a claim of discrimination that avoiding the discrimination would impose an unjustifiable hardship upon the respondent. The ADA contains a broad range of exemptions including, relevant to the employment context, an exemption for youth wages^[37] and exempted employment programs.^[38] The ADA also contains an ‘inherent requirements’ defence for many of the areas of public life in which age discrimination is otherwise unlawful. Temporary exemptions Temporary exemptions can be sought from HREOC under the SDA,^[39] DDA^[40] and ADA.^[41] They are not available under the RDA. Exemptions can only be granted for purposes that further the objects of the respective Act. They may be subject to conditions set by HREOC and are provided for a term of no more than five years. HREOC’s discretion to grant exemptions is broad – the Acts do not specify the things about which HREOC must be satisfied to grant an exemption. HREOC has developed public guidelines that set out the basis upon which it makes exemption decisions.^[42] (f) HREOC’s functions in relation to equal opportunity in employment and ‘ILO 111 discrimination’ This paper is concerned primarily with federal unlawful discrimination laws – namely, the RDA, SDA, DDA and ADA. However, it should be noted that HREOC also has a range of functions in relation to equal opportunity in employment,^[43] based on the ILO Convention concerning Discrimination in respect of Employment and Occupation (‘ILO 111’).^[44] These functions include inquiring into alleged acts of workplace ‘discrimination’. ‘Discrimination’ in this context needs to be distinguished from ‘unlawful discrimination’. ‘Unlawful discrimination’ refers to acts, omissions and practices that are unlawful under the RDA, SDA, DDA and ADA.^[45] ‘Discrimination’ is defined under the HREOC Act to mean:

• any distinction, exclusion or preference;
• made on the basis of
  • race, colour, national extraction, social origin, nationality;
  • sex, marital status;
  • religion, political opinion, trade union activity;
  • age;
  • criminal record;
  • disability, impairment, medical record; or
  • sexual preference;
• that has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation;
• but not including a distinction, exclusion or preference
  • in respect of the inherent requirements of a particular job; or
  • made in good faith in accordance with the doctrines and beliefs of a particular religion or creed necessary to avoid injury to religious susceptibilities.^[46]

It is therefore convenient to refer to ‘ILO 111 discrimination’ to distinguish it from ‘unlawful discrimination’. While ILO 111 discrimination overlaps with unlawful discrimination, it is also significantly different in the following respects:

• Unlawful discrimination applies to a range of non-employment situations (such as education, the provision of goods and services) but is narrower in the discriminatory grounds that it covers (unlawful discrimination does not cover areas such as sexual preference, criminal record, political opinion).
• There are also different complaints mechanisms for unlawful discrimination complaints and ILO 111 discrimination complaints:
  • In both cases, complaints are investigated by HREOC with a view to conciliation;^[47]
  • In unlawful discrimination matters, if the complaint cannot be resolved by conciliation, or is not appropriate for conciliation, it is terminated by the President of HREOC and the complainant can bring an action in the Federal Magistrates Court or Federal Court.^[48] A successful applicant can seek a range of enforceable remedies, including monetary compensation.^[49]
  • In ILO 111 discrimination matters, if the complaint cannot be resolved by conciliation, or is not appropriate for conciliation and the President forms the view that discrimination has occurred, s/he prepares a report to the Attorney-General that is tabled in federal parliament.^[50] Reports can include recommendations for preventing a repetition of the act or continuation of the practice as well as the payment of compensation or other remedies.^[51] These recommendations are not, however, enforceable remedies.

Employers and employees should therefore be aware that HREOC’s ILO 111 functions provide another avenue under which employees can seek to assert their right to a discrimination free workplace.^[52] ^Top

3. Employee liability

Employees will be personally liable for discrimination against fellow employees under the RDA, DDA, and ADA where they are ‘acting or purporting to act on behalf of an employer’.^[53] The expression ‘acting or purporting to act on behalf of an employer’ has not been judicially considered in the context of the RDA, DDA and ADA. In other contexts, however, the expression ‘on behalf of’ has been found to be a potentially broad expression extending beyond a relationship of agency to include a ‘wide range of relationships… in some way concerned with the standing of one person as auxiliary to or representative of another person or thing’.^[54] It might therefore be expected to include the actions of employees in a range of circumstances, particularly where acting in a managerial capacity. Under the SDA, only discrimination by an employer is made unlawful,^[55] but both employers and employees are liable for acts of sexual harassment.^[56] It is unlawful under the DDA for an employee to harass another employee in relation to their disability.^[57] It is also unlawful under the RDA for a person to do a public act because of race that is offensive, insulting, humiliating or intimidating.^[58] Acts done by employees in the workplace are likely to be covered by this prohibition.^[59] ^Top

4. Employer liability

Each of the federal unlawful discrimination Acts provides for vicarious liability. Under the RDA and SDA, an employer is liable for acts done ‘in connection with’ an employee’s employment or an agent’s duties.^[60] The case law has established that the expression ‘in connection with’ extends liability beyond common law vicarious liability which is generally limited to acts done ‘in the course of’ employment. This is discussed further below. Under the DDA and ADA, an employer is liable for conduct ‘engaged in on behalf of’ an employer by an employee acting ‘within the scope of his or her actual or apparent authority’.^[61] Commenting on the differences between the provisions in the RDA and SDA on the one hand and the DDA and ADA on the other, authors Lindsay, Rees and Rice have suggested:‘[w]hether there is any meaningful difference between these descriptions of the circumstances in which there is a sufficient nexus with the relationship and the act of discrimination for one person to be held liable for the discriminatory conduct of another is not yet clear.’^[62] Employers may be vicariously liable for the discriminatory acts of their employees (including harassment) unless they can demonstrate that they:

• ‘took all reasonable steps’ to prevent the doing of the act (under the RDA^[63] and SDA^[64]); or
• ‘took reasonable precautions and exercised due diligence to avoid the conduct’ (under the DDA^[65] and ADA^[66]).

The onus is on an employer to prove that they ‘took all reasonable steps’ or ‘took reasonable precautions and exercised due diligence’.^[67] (a) ‘Reasonable precautions and due diligence’ The ‘reasonable precautions and due diligence’ test applying under the DDA and ADA was considered by Raphael FM in Vance v State Rail Authority (‘Vance’).^[68] His Honour stated: Case law in this area emphasises the importance of implementing effective education programs to limit discriminatory conduct by employees and the necessity of such programs for employers to avoid being held vicariously liable for the acts of their employees… the test to be applied is an objective one based upon evidence provided by the employer as to the steps it took to ensure its employees were made aware of what constituted discriminatory conduct, that it was not condoned and that effective procedures existed for ensuring that so far as possible it did not occur.^[69] Raphael FM held that the Act requires proactive and preventative steps to be taken. Perfection is not the requisite level – only reasonableness.^[70] Vance v State Rail Authority In Vance, the applicant was a woman with a visual disability who complained of indirect disability discrimination in the provision of services by the respondent. The applicant had been unable to board a train because the guard had not allowed sufficient time for her to do so, by closing the doors without warning while the applicant was attempting to board. On the issue of vicarious liability, Raphael FM held that the respondent had taken reasonable precautions and exercised due diligence to avoid any discriminatory conduct by its employees. In particular, the respondent had ‘thoroughly’ trained its guards and did not condone any failure to allow people with disability to board trains. Notably, where the respondent became aware of breaches of its ‘General Orders’ by drivers or guards, these were dealt with by the issuing of ‘Special General Orders’.^[71] (b) ‘All reasonable steps’ The ‘all reasonable steps’ test applying under the SDA and RDA has been considered in a number of cases and the following principles have been established:

• Awareness: It is not necessary for a respondent to be aware of an incident of harassment for vicarious liability to apply.^[72]
• ‘Reasonableness’: The requirement of reasonableness applies to the nature of the steps actually taken and not to determine whether it was reasonable to have taken steps in the first place.^[73]
• Size of employer: The size of the employer will be relevant to the question of whether it took ‘all reasonable steps’ to prevent the employee or agent from doing the acts complained of, as it is unrealistic to expect all employers, regardless of size, to adhere to a common standard of preventative measures. The employer or principal must take some steps, the precise nature of which will be different according to the circumstances of the employer.^[74]
• Small businesses: Even in small businesses employers must have ‘done something active to prevent the acts complained of’^[75] in order to make out the defence although this does not require a written sexual harassment policy.^[76] Examples of the kind of conduct that would assist in making out the defence for a small employer includes:
  • providing new employees with a brief document pointing out the nature of sexual harassment, the sanctions that attach to it and the course to be followed by any employee who feels sexually harassed;^[77]
  • informing employees that disciplinary action will be taken against them should they engage in sexual harassment, making available brochures containing information on sexual harassment, advising new staff that it is a condition of their employment that they should not sexually harass a customer or co-worker;^[78] and
  • the existence of an effective complaint handling procedure to deal with complaints of harassment.^[79]
• Large corporations: Large corporations will be expected to do more than small businesses in order to be held to have acted reasonably.^[80] For example, a clear sexual harassment policy should be in place. It should be available in written form and communicated to all members of the workforce. Continuing education on sexual harassment should also be undertaken.^[81]
• ‘No authority to harass’: It is no excuse to a claim of sexual harassment to argue that an employee was not authorised to harass people (which might otherwise take the act outside the sphere of employment).^[82]

Shiels v James In Shiels v James,^[83] the applicant was the only female employee on a building construction site. She was subjected to a range of behaviour found to constitute sexual harassment, including inappropriate remarks and touching. Raphael FM found that the respondent was unable to demonstrate it had taken ‘all reasonable steps’ to prevent the harassment because:

• its anti-discrimination policy, ‘good as it was’, was not delivered to the applicant or indeed any of the workers on the site until six weeks after the applicant had commenced work and some four weeks after the allegations of sexual harassment;
• there was no verbal explanation of the policy nor was its existence specifically drawn to the attention of workers;
• the applicant could have expected that her interests would be looked after in a more direct manner in the particular circumstances in which she found herself, a lone female on a building site;
• the nominated sexual harassment contact people were based off-site and the applicant had little or no contact with them on a day-to-day basis; and
• the applicant complained to the harasser about the incidents but he, although a senior employee of the company, did not desist from the behaviour.^[84]

The respondent was ordered to pay $17,000 in damages. ^Top

5. The ‘hostile work environment’

(a) The SDA A number of discrimination cases have considered what has been called a ‘hostile work environment’ in the context the SDA. The cases illustrate that the cumulative impact of behaviour and incidents in the workplace in which women are treated differently, or made to feel uncomfortable, can amount to discrimination in the conditions of employment. Significantly, conduct which, of itself, might not be discriminatory, may contribute to a work environment that is detrimental to women and give rise to liability for discrimination. Hill v Water Resources Commission Often the behaviour complained of has included conduct that is clearly sexual harassment or that, of itself, constitutes a detriment. In Hill v Water Resources Commission^[85](‘Hill’), for example, the complainant complained of ‘repeated acts of gender-based harassment at the workplace where she was part of a predominantly male workforce.’^[86] The NSW Equal Opportunity Tribunal commented that this was ‘perhaps better described as “sexist” harassment, than sexual harassment’,^[87] although it clearly involved both – the receipt of offensive, sex-oriented material over a long period of time as well as unwelcome comments and a range of conduct found to be calculated to make female employees feel uncomfortable and unwelcome. However, some of the conduct the subject of the Hill case would not, of itself, be expected to give rise to a successful claim of sex discrimination. For example, the complaint included conduct that was described as ‘stirring’ by male colleagues, such as comments about her being appointed Spokeswoman for the Commission – ‘Why isn’t it “spokesperson”?’ and ‘Why isn’t there a spokesman?’^[88] This conduct nevertheless formed part of a ‘hostile work environment’ that was ‘sufficiently pervasive to affect adversely the terms and conditions of employment’.^[89] The respondent was ordered to pay damages of approximately $35,000. Rich v Price Waterhouse Coopers A more recent and widely publicised case, brought by Christina Rich against accounting firm Price Waterhouse Coopers, included allegations of a ‘boys’ club culture’ that operated to discriminate against women. Ms Rich claimed that her performance had been undervalued and her promotion prospects limited because of this culture. The case was ultimately settled,^[90] but it remains an interesting case to consider. The allegations included conduct that would clearly amount to sexual harassment such as forcibly undoing her bra and feeling her breasts and comments referring to her breasts. However, Ms Rich also complained of being greeted with a kiss by a senior partner, despite having asked him not to do so. She also complained that she had been described as ‘scatty’, ‘emotional’ and ‘high maintenance’ as well as a range of other comments that were said to impute to women that they are emotional, in need of extra care, unable to determine for themselves what is best for their career and use their physical attributes to succeed.^[91] In another case brought in the Federal Court in 2005,^[92] but also settled, a female employee in a large bank alleged that she was denied a promotion because of her sex and/or pregnancy and that the respondent’s workplace culture was hostile to women and women with family responsibilities. Particulars of this alleged culture included the prevalence of ‘girly’ magazines, the display of pictures of scantily clad women, visits by employees to strip clubs with and without clients and discussion of such visits during work, ‘male only’ activities out of work hours, belittling of female employees and the telling of offensive jokes within the earshot of female employees. Commenting on the Rich case, Tony Wood and Tina Lavranos have observed that

conduct alleged by senior female employees in recent high-profile sex discrimination cases focuses on subtle behaviours in and around the workplace which made them feel that they were not give an equal opportunity to succeed. This may challenge the codes of behaviours within professional workplaces which, in many workplaces, have been traditionally dominated and led by men. Such behaviours include the ways in which relationships are established within and outside the business that affect an employee’s career progression, who they work for and which clients they attract.^[93]

Is there a place for workplace banter? Another issue relevant to workplace culture that has often arisen in sexual harassment cases is where to draw a line between acceptable ‘banter’ amongst staff and sexual harassment. In Beamish v Zheng,^[94] the applicant complained of a range of conduct by the respondent co-worker, including sexual comments, an attempt to touch her breasts and an offer of $200 to have sex with him. In finding for the applicant, Driver FM stated:

The workplace in which Mr Zheng and Ms Beamish worked was a fairly rough and tumble place in which lighthearted behaviour was tolerated. In the circumstances, a certain amount of sexual banter could have been anticipated. However, Mr Zheng’s conduct was persistent and went beyond anything that could be described as lighthearted sexual banter. Ms Beamish’s reactions to his conduct should have made clear that it was unwelcome. In the circumstances, a reasonable person would have anticipated that Ms Beamish would have been offended, humiliated or intimidated by Mr Zheng’s persistent conduct. In particular, the attempt to touch her breasts was unacceptable and the offer of money for sex was grossly demeaning.^[95]

It may be that the line is harder to draw in the abstract than it is in practice. A feature of most reported cases concerning sexual harassment is that it has been made clear to the harasser, directly or indirectly, that their behaviour was unwelcome. It has been the continuation of the behaviour that has resulted in the matter forming the subject of the complaint. This is not to say, however, that a single incident cannot constitute harassment. In Hall v Sheiban,^[96] French J emphasised that ‘circumstances, including the nature and relationship of the parties may stamp conduct as unwelcome the first and only time it occurs’.^[97] This approach has been adopted in other sexual harassment cases.^[98] Much will depend upon context and, given the ‘reasonable person’ test for sexual harassment, common sense is a useful guide. (b) The RDA A number of cases have considered workplaces that are hostile to people of particular races. Similar to cases decided under the SDA, the cases have considered both clear acts of racial discrimination and vilification as well as other behaviour said to contribute to, or stem from, a racially hostile work environment. Kordos v Plumrose (Australia) Ltd In Kordos v Plumrose (Australia) Ltd,^[99] the applicant complained that over a period of 5 years he was the victim of sustained racial discrimination culminating in his dismissal. Mr Kordos, who was born in Greece, worked as boner in a meatworks. He complained that he was referred to constantly by other workers in the boning room in derogatory, abusive and racist terms, including ‘wog’, ‘Greek bastard’ and ‘black Greek wog’, as well as other similar expressions. Mr Kordos also complained he was subjected to a range of disadvantageous treatment because of his race, including in the allocation of work, the failure to provide him with knives and the condition of the meat upon which he was required to work (some of which was partially frozen and therefore harder to cut). The Court found that the cause of the disadvantageous treatment was ‘racial in origin’, having resulted from the antagonism that developed in the workplace and was expressed in racial terms. Mr Kordos’s dismissal stemmed from an incident in which he was alleged to have threatened a fellow employee. The Court found that the incident was created by the co-worker who then misrepresented and misreported it. The co-worker was motivated by animosity that was the product of his ‘racist attitudes and invective and the plaintiff’s refusal to passively accept it.’ While the decision of management to dismiss Mr Kordos was not found to be racially motivated, the dismissal was held to have come about as the result of racial discrimination: ‘racial discrimination was an essential element in the series of events that should collectively be seen as constituting the circumstances of the dismissal.’^[100] The employer was found both vicariously and directly liable for the discrimination and ordered to pay $23,800 in damages. Duggan J held:

In my opinion, there is also direct liability. For the employer it was ‘unlawful to do any act… involving a distinction… based on race… which had the purpose or effect of impairing the enjoying of the exercise of the right… to just and favourable conditions of work…’. The conditions of work presently under consideration could only be the product of the conduct of the plaintiff’s fellow employees. It was through them that the employer provided ‘conditions of work’. If the fellow employees acted as I believe they did here, then prohibited conditions prevailed. It follows that the employer has an active duty to ensure that an individual employee is not subjected to acts that can be characterised as racial discrimination, in so far as such acts affect the conditions of work. It is not enough to remain aloof and ignore a situation which the employer does not condone. To do so will make the employer liable in damages.^[101]

This approach was cited with approval in a number of decisions of HREOC Commissioners, sitting at that time as hearing Commissioners prior to the transfer of hearings to the Federal Court and Federal Magistrates Court.^[102] In Surti v Queensland,^[103] a case under the SDA, Commissioner Bryce stated:

I accept that an employer can be directly responsible under the Act for the creation or tolerance of a racially hostile work environment, which itself is the product of individual acts of a racially discriminatory nature, whether or not they are committed by persons under the direct control of the respondent. This responsibility stems from the duty of an employer to take steps to ensure that its workplace is free of all forms of racial discrimination of which the employer is aware or should be aware. An omission to act can constitute discriminatory conduct…^[104]

Rugema v Gadsten Pty Ltd In Rugema v Gadsten Pty Ltd,^[105] an employee who was of black African origin and appearance complained of prolonged racial abuse at work, particularly by his supervisor, who was found to have called him, amongst other things, a ‘black bastard’ and a ‘lazy black bastard’. This was found to have caused a major depressive episode with post-traumatic stress symptoms. HREOC Commissioner Carter found that the abuse constituted a breach of the general prohibition on racial discrimination in s 9(1) of the RDA and the prohibition on racial vilification in s 18C. It also breached the prohibition on discrimination in employment in s 15(1), on the basis that the use of such terms resulted in Mr Rugema ‘having conditions of work less favourable to others by reason of his race or ethnic origin’. Damages of $55,000 were awarded. Gama v Qantas Airways Ltd In Gama v Qantas Airways Ltd (No 2)^[106]the applicant, born in Goa, India, complained of a range of behaviour said to constitute racial and disability discrimination. At first instance, Raphael FM accepted that the making of remarks to the applicant in the workplace that he looked like a ‘Bombay taxi driver’ and walked up stairs ‘like a monkey’ denigrated him on the basis of his race and therefore amounted to acts of race discrimination under s 9. Other claims of racial discrimination in the denial of promotions and training opportunities were rejected. On appeal,^[107] Qantas argued that the racist remarks were not sufficient of themselves to constitute an act of discrimination. Qantas submitted that as Raphael FM had rejected the applicant’s other claims of race discrimination in employment and there was no evidence of systemic racial bullying or harassment, there was no nexus between the racist remarks and any adverse impact on the conditions of his employment.^[108] The Full Federal Court unanimously rejected Qantas’ submission on this point.^[109] It held that the making of a remark was an ‘act’ for the purposes of s 9.^[110] The Court noted:

The denigration of an employee on the grounds of that person’s race or other relevant attribute can properly be found to have the effect of impairing that person’s enjoyment of his or her right to work or to just and favourable conditions of work.^[111]

And further:

Undoubtedly remarks which are calculated to humiliate or demean an employee by reference to race, colour, descent or national or ethnic origin, are capable of having a very damaging impact on that person’s perception of how he or she is regarded by fellow employees and his or her superiors. They may even affect their sense of self worth and thereby appreciably disadvantage them in their conditions of work. Much will depend on the nature and circumstances of the remark.^[112]

The Court accepted that the finding at first instance that the relevant remarks adversely affected the applicant’s conditions of employment was open to Raphael FM on the facts.^[113] Qantas was found to be vicariously liable for each of these incidents on the basis that the remarks were made by, or in the presence of, a supervisor of Mr Gama and therefore condoned. This was unsuccessfully challenged on appeal.^[114] ^Top

6. Flexible working conditions and family responsibilities

A significant cause of litigation under the SDA in recent years has been the failure of employers to accommodate requests by women for flexible working conditions to enable them to care for their children.^[115] While the cases cannot be said to reflect a right to part-time work or flexible working conditions, they do establish that employers need to seriously consider such requests and will need a good reason to refuse them. (a) Part-time work Hickie v Hunt & Hunt The seminal case on this issue is Hickie v Hunt & Hunt^[116] (‘Hickie’). In Hickie, the complainant had taken maternity leave shortly after having been made a contract partner at the respondent law firm. She complained of a range of less favourable treatment during the period of her maternity leave and following her return to work on a part-time basis. Relevantly, an area of her practice was removed from her on the basis that it could not be managed working part-time. Commissioner Evatt held:

Although no statistical data was produced at the hearing, the records produced by Hunt and Hunt suggest that it is predominantly women who seek the opportunity for part time work and that a substantial number of women in the firm have been working on a part time basis. I also infer from general knowledge that women are far more likely than men to require at least some periods of part time work during their careers, and in particular a period of part time work after maternity leave, in order to meet family responsibilities. In these circumstances I find that the condition or requirement that Ms Hickie work full-time to maintain her position was a condition or requirement likely to disadvantage women.^[117]

The condition to work full-time was also considered by Commissioner Evatt to be unreasonable:

Hunt and Hunt have accepted that women should be able to work part time after their maternity leave. In that case, they should have approached Ms Hickie’s problem by seeking alternative solutions which would have enabled her to maintain as much of her practice as possible. The firm should have considered seriously other alternatives. Ms Hickie would return in a few weeks and she was willing to work on urgent matters. Part of her practice could have been preserved for her with other arrangements.^[118]

Mayer v Australian Nuclear Science & Technology Organisation In Mayer v Australian Nuclear Science & Technology Organisation,^[119] (‘Mayer’) the applicant wanted to work part-time following a period of maternity leave. The refusal of the applicant’s request to work part-time was found to be unreasonable and amounted to indirect discrimination.^[120] Driver FM found that there was in fact part-time work available for Ms Mayer. This work was ‘different work to that which the applicant had been doing, but it was important work that the applicant was able to do and that needed to be done’.^[121] Consequently, the respondent’s refusal to accommodate the applicant’s request for part-time work was not reasonable:

Ms Bailey identified work that could properly occupy Ms Mayer’s time until 3 January 2003 for two days each week. At a minimum, therefore, the respondent should have offered Ms Mayer employment for two days per week for the balance of her contract until 3 January 2003. The work that Ms Mayer could have performed part-time would have been discrete project work, rather than the performance of her previous functions. Ms Mayer gave evidence of important projects that she could have assisted on. Ms Bailey in her e-mail, stated that there were ‘many projects’ that Ms Mayer could work on. In my view, with a little imagination the respondent could, if it had wished to, found useful work for Ms Mayer to do for three days a week until 3 January 2003. … [T]he respondent’s effort to find part-time work for the applicant was inadequate. The respondent’s refusal of part-time work for three days per week was not reasonable.^[122]

His Honour found, however, that it was not unreasonable for the employer to reject the applicant’s proposal for job-sharing or working partly from home:

It was reasonable for the respondent to refuse Ms Mayer’s proposal for job sharing of her role, or for her to work partly from home… Ms Mayer’s role required both a consistency of approach and regular interaction with other staff. The effective performance of that role would have been problematic if Ms Mayer had worked partly from home, or had shared her duties with another employee. It was clear from Ms Mayer’s own evidence that she would not have been able to work full-time from home while caring for her child.^[123]

(b) Flexible working conditions The need for flexibility in working conditions, including the need to take carer’s leave, has arisen in a number of cases concerning the prohibition on direct discrimination on the ground of family responsibilities. Song v Ainsworth Game Technology In Song v Ainsworth Game Technology Pty Ltd,^[124] the applicant sought to continue an informal practice she had maintained for nearly one year of leaving the workplace for approximately twenty minutes (from 2.55pm to 3.15pm) each afternoon to transfer her child from kindergarten to another carer. The respondent sought to impose upon the applicant the condition that she attend work from 9am until 5pm with a half hour for lunch between 12pm and 1pm. When this condition was not accepted the respondent unilaterally changed the applicant’s employment from full-time to part-time employment, purportedly to allow the applicant to meet her family responsibilities. Raphael FM found that the applicant was treated less favourably than a person without family responsibilities who would have expected flexibility in starting and finishing times and in the timing of meal breaks.^[125] His Honour further found that the unilateral change to part-time employment constituted constructive dismissal of the applicant and that one of the grounds for that dismissal was the applicant’s family responsibilities in breach of s 14(3A) of the SDA.^[126] Evans v National Crime Authority In Evans v National Crime Authority,^[127] the applicant, a single parent, was employed on contract as an intelligence analyst by the National Crime Authority (‘NCA’). The applicant left her employment before the end of her contract after being informed that her contract would not be renewed. Prior to this, the applicant had a series of discussions with, principally, the manager of investigations responsible for her team (‘the manager’), in which concerns were expressed abouther attendance record and taking of personal leave (comprising carer’s leave and sick leave – all within her leave entitlements). Raphael FM found that the manager was unhappy with the concept of carer’s leave^[128] and that the manager considered non-attendance for reasons of carer’s leave to be damaging to that person’s employment prospects within the NCA.^[129] His Honour was also satisfied that the manager’s grading of the applicant at her performance review was influenced by his views as to her taking of personal leave.^[130] This in turn affected the renewal of the contract.^[131] Raphael FM concluded that the applicant had been constructively dismissed on the basis of her family responsibilities, contrary to s 14(3A) of the SDA.^[132] In finding direct discrimination, his Honour compared the treatment of Ms Evans with that which would have been afforded to an employee without family responsibilities who took personal leave within his or her entitlements.^[133] ^Top

7. Reasonable adjustments for people with disability

One of the significant issues arising under the DDA in workplace discrimination cases has been the extent to which employers are subject to a ‘duty to accommodate’ the needs of employees with disability. A number of cases have considered the issue in the context of the direct discrimination provisions of the DDA.^[134] Following the decision of the High Court in Purvis v New South Wales,^[135] it appears settled that a failure to provide accommodation for an employee with disability will not constitute direct discrimination and it is not accurate to speak of a positive ‘duty to accommodate’ a person’s disability. This position may be altered as a result of proposed amendments to the DDA in order to implement recommendations made by the Productivity Commission in its 2004 review of the Act.^[136] These recommendations included the introduction of a positive duty on employers and others to make reasonable adjustments so as to remove barriers that prevent people with a disability from working. In the meantime, however, employers should not be misled into concluding that the DDA, in its current form, does not require that reasonable adjustments be made to meet the needs of employees with disability.^[137] In particular, it is clear that:

• it is unlawful to refuse to employ a person or to dismiss them because they would require assistance in carrying out the inherent requirements of the job, unless providing that assistance would impose ‘unjustifiable hardship’ on the employer; and
• a failure to accommodate the needs of a person with disability may still constitute indirect disability discrimination if such failure is unreasonable.^[138]

(a) The inherent requirements of the job Section 15 of the DDA makes discrimination in employment unlawful. The ‘inherent requirements’ defence is contained in s 15(4) and provides that it is not unlawful to refuse to employ or dismiss an employee on the ground of their disability if taking into account the person’s past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person’s performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability:

(a) would be unable to carry out the inherent requirements of the particular employment; or (b) would, in order to carry out those requirements, require services or facilities that are not required by persons without the disability and the provision of which would impose an unjustifiable hardship on the employer.

The ‘inherent requirements’ of the particular employment refers to those functions that are essential to the position. In Qantas Airways Ltd v Christie,^[139] Brennan CJ stated:

The question whether a requirement is inherent in a position must be answered by reference not only to the terms of the employment contract but also by reference to the function which the employee performs as part of the employer’s undertaking and, except where the employer’s undertaking is organised on a basis which impermissibly discriminates against the employee, by reference to that organisation.^[140]

Gaudron J suggested that:

A practical method of determining whether or not a requirement is an inherent requirement, in the ordinary sense of that expression, is to ask whether the position would be essentially the same if that requirement were dispensed with.^[141]

It has been held that, when read as a whole, the defence in s 15(4) requires that employer show that the employee (or prospective employee) is unable to carry out the requirements of the position even if provided with services or facilities that can be provided without imposing an unjustifiable hardship on the employer. In X v Commonwealth,^[142] McHugh J held:

Section 15(4) must be read as a whole. When it is so read, it is clear enough that the object of the sub-section is to prevent discrimination being unlawful whenever the employee is discriminated against because he or she is unable either alone or with assistance to carry out the inherent requirements of the particular employment. If the employee can carry out those requirements with services or facilities which the employer can provide without undue hardship, s 15(4) does not render lawful an act of discrimination by the employer that falls within s 15. For discrimination falling within s 15 to be not unlawful, therefore, the employee must have been discriminated against because he or she was: (a) not only unable to carry out the inherent requirements of the particular employment without assistance; but was also (b) able to do so only with assistance that it would be unjustifiably harsh to expect the employer to provide.^[143]

This does not mean that an employer is obliged to change the nature of the particular job, or its inherent requirements, to accommodate a person with a disability. In X v Commonwealth, Gummow and Hayne JJ (with whom Gleeson CJ and Callinan J agreed) observed:

the requirements that are to be considered are the requirements of the particular employment, not the requirements of employment of some identified type or some different employment modified to meet the needs of a disabled employee or applicant for work.^[144]

However, McHugh J in X v Commonwealth noted that it is for the trier of fact to determine whether or not a requirement is inherent in a particular employment. A respondent is not able to organise or define their business so as to permit discriminatory conduct.^[145] While his Honour suggested that ‘appropriate recognition’ must be given ‘to the business judgment of the employer in organizing its undertaking and in regarding this or that requirement as essential to the particular employment’,^[146] the onus remains on an employer to demonstrate that an employee’s disability (appropriately accommodated) prevents them from performing the inherent requirements of the position (as opposed to other functions that which are not essential parts of the job). (b) Indirect discrimination Failure to provide reasonable adjustments for the needs of an employee with a disability may also amount to indirect discrimination. For example, in Daghlian v Australian Postal Corporation,^[147] the respondent had a ‘no chair’ policy, which prohibited employees from using stools behind the retail counter. This was found to impose a ‘requirement or condition’ that the applicant not be seated at the retail counter during her work hours.^[148] The applicant had physical disabilities which limited her ability to stand for long periods. This was held to constitute indirect discrimination. In finding that the requirement or condition was not reasonable, Conti J considered a wide range of factors, including:

• health and safety issues (it was claimed by the respondent that the presence of stools created a danger of tripping for other staff);
• the needs of the applicant (identified in medical and ergonomic reports) to assist her to work satisfactorily and efficiently in the performance of her duties, notwithstanding her physical disabilities;
• the applicant’s status as a competent and conscientious employee and a dutiful member of the counter staff;
• the desire of the respondent to create a ‘new image’ for its post shops; and
• the ability for the needs of the applicant to be accommodated through structural changes to the counter area.^[149]

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8. Where does the workplace end?

As noted earlier, all of the Federal discrimination Acts contain provisions that make an employer vicariously liable for the conduct of their employees in particular contexts. Under the SDA, for example, vicarious liability extends to those acts done ‘in connection with’ the employment of an employee or with the duties ‘of an agent as an agent’ (s 106(1)). This has raised some difficult questions in relation to sexual harassment by one employee of another employee when it occurs away from the normal workplace. Leslie v Graham In Leslie v Graham^[150] (‘Leslie’), sexual harassment was held to have occurred in the early hours of the morning in a serviced apartment that the complainant and another employee were sharing whilst attending a work related conference. In considering whether the conduct constituted sexual harassment of one employee by a fellow employee, Branson J^[151] noted that when the harassment occurred the employment relationship of the two people involved was a continuing one, they were sharing the apartment in the course of their common employment and the apartment was accommodation provided to them by their employer for the purpose of attending a conference.Her Honour concluded that the employer was therefore vicariously liable pursuant to s 106(1) of the SDA. South Pacific Resort Hotels Pty Ltd v Trainor In South Pacific Resort Hotels Pty Ltd v Trainor^[152](‘Trainor’), the applicant was employed by the respondent in its hotel on Norfolk Island. The applicant resided in staff accommodation made available by the respondent, with her room being adjacent to the room of a fellow employee, Mr Anderson. The applicant made two allegations of sexual harassment against Mr Anderson. Both incidents occurred in the early hours of the morning in the applicant’s room, with one of the incidents occurring after a staff function. The Full Federal Court accepted that the harassment on each occasion had occurred ‘in connection with’ Mr Anderson’s employment, notwithstanding that it had occurred whilst both he and the applicant were off-duty and were not performing any function in relation to their employment. In the joint judgment of Black CJ and Tamberlin J, their Honours emphasised that the expression ‘in connection with the employment’ in s 106(1) was ‘a broad one of practical application’.^[153] Their Honours also applied the decision in Leslie, noting that the facts in Trainor suggested an even closer link to the employment. Pursuant to the employer’s policies, visitors were not allowed in the staff accommodation. It was therefore only by reason of their common employment that both Mr Anderson and the applicant happened to be there.^[154] Kiefel J also emphasised the beneficial objects of the SDA, including the object described in s 3(c) of the SDA ‘to eliminate, so far as possible, discrimination involving sexual harassment in the workplace’.^[155] Her Honour concluded on the facts that the relevant conduct had occurred ‘between two employees in accommodation provided by the employer as an incident of employment’.^[156] Furthermore, the employees’ rooms were ‘in close proximity to each other and they were accessible’^[157] and the circumstances created by the employer had allowed the incident to occur in the early hours of the morning.^[158] Finally, her Honour noted that the second incident had occurred following a staff function at which Mr Anderson had consumed alcohol.^[159] For all of these reasons, her Honour accepted that Mr Anderson’s conduct on each occasion had occurred in connection with his employment.^[160] Lee v Smith The broad scope of s 106(1) was again confirmed in Lee v Smith^[161]in which the Commonwealth (Department of Defence) was held vicariously liable for the actions of its employees who subjected the applicant, a civilian administrator at a Cairns naval base, to sexual harassment, discrimination, victimisation and ultimately rape by the first respondent. Ms Lee was sexually harassed over a period of several months by naval officer Smith. Smith repeatedly asked Lee for sex, intimidated her with inappropriate and offensive comments, and made attempts to grope her. The Court also found that pornography was displayed in the workplace. After Lee demanded that his harassment cease, Smith stopped harassing her for about two weeks. Around this time, Lee and Smith attended an after-work dinner party at the home of two colleagues. Lee became intoxicated at the dinner and passed out. When she woke up the next day, she was in Smith’s house and he was raping her. Federal Magistrate Connolly held that the rape had occurred ‘in connection with’ the first respondent’s employment, primarily on the basis that:

…the rape was the culmination of the earlier incidents of sexual harassment directly in the workplace.^[162]

Consequently, his Honour held, the first respondent’s conduct:

…was an extension or continuation of his pattern of behaviour that had started and continued to develop in the workplace he shared with the Applicant. The nexus with the workplace was not broken.^[163]

Connolly FM further held that the rape:

occurred between two current employees and in my view it arose out of a work situation. The applicant was invited to attend after-work drinks by a fellow employee and indeed the invitation was issued at the behest of the first respondent. Further, the rape itself was the culmination of a series of sexual harassments that took place in the workplace and would not have occurred but for the collusion of …two fellow employees who made concerted efforts over a period of time to make arrangements for the applicant and first respondent to attend dinner at their residence. The applicant’s attendance was clearly because of the original after-works drinks invitation and it was likely that the invitation was provided in that form to ensure the applicant’s attendance. There is no doubt that it not only had the potential to adversely affect the working environment but it did so…^[164]

His Honour also held that the applicant had been given no relevant training in sexual harassment. Such training, his Honour held, may have prevented matters from escalating to the point of the rape by assisting the applicant to report the earlier sexual harassment within the workplace.^[165] Also relevant to the finding that ‘all reasonable steps’ had not been taken was the display of pornography in the workplace. Connolly FM held that the display of such material ‘may well create an impression regarding the prevailing workplace culture and thereby diminishing the confidence in the formal complaint procedures and policies’.^[166] Comment As the above discussion illustrates, the Federal authorities have adopted a consistently broad approach to assessing when off-duty conduct is ‘in connection with the employment’ for the purposes of attaching vicarious liability to the employer.^[167] This has been on the basis that such an approach reflects the broad language Parliament has used in that section and is an approach that best advances the beneficial objects of the SDA. In particular, the Federal authorities have not confined the scope of s 106(1) to conduct occurring whilst employees are ‘on-duty’ or on work premises. As the decision in Lee highlights most clearly, provided that the off-duty sexual harassment can be seen as an extension or culmination of events occurring within the workplace, the nexus requirement under s 106(1) will be met. However, whilst the scope of vicarious liability under the RDA^[168] is expressed in similar terms to the SDA, the relevant provisions under the DDA and ADA may be narrower. These provisions adopt language more closely aligned with vicarious liability at common law, limiting vicarious liability to conduct of a director, servant or agent of a body corporate ‘within the scope of his or her actual or apparent authority’.^[169] However, the reach of the vicarious liability provisions under the DDA and ADA in the context of off-duty conduct, or conduct occurring away from the normal workplace, has yet to be considered by the courts. ^Top

9. Dealing with complaints of discrimination and harassment

How an employer deals with complaints of discrimination and harassment is very important. On a practical level, a timely and appropriate response to a complaint is likely to avoid further unlawful acts (or the development of a ‘hostile work environment’) and may minimise the harm caused by way of distress or humiliation. The nature of an employer’s response is also relevant in determining vicarious liability. It will provide evidence of the manner in which the employer implements its policies and procedures to avoid discrimination – a matter relevant to determining whether the employer has taken ‘all reasonable steps’ to avoid discrimination. As Driver FM observed in Johanson v Blackledge: ‘It is not enough to have a policy. One has to apply it.’^[170] It is also important to note the victimisation provisions in the discrimination Acts. ‘Victimisation’ in this context refers to subjecting a person to a disadvantage by reason of them, amongst other things, making a complaint of discrimination, providing information in connection with a complaint or attending a conference held in connection with a complaint (or proposing to do any of those things). All of the Acts make victimisation an offence.^[171] Victimisation is also included in the definition of ‘unlawful discrimination’.^[172] It can therefore also be the subject of a complaint to HREOC and proceedings in the Federal Court and Federal Magistrates Court seeking any of the remedies ordinarily available for unlawful discrimination matters.^[173] A complaint of victimisation was a feature of the case brought by Christina Rich against Price Waterhouse Coopers, discussed above. Ms Rich alleged that following her complaints of discrimination and harassment she was, amongst other things, not allowed to meet with clients, directed to go on stress-related leave and had clients directed to other partners. ^Top

10. Conclusion

Providing a discrimination-free workplace raises a number of challenges for employers and employees. It may require

• Changing workplace cultures and confronting unacceptable practices. Such practices may range from harassment and bullying to more subtle behaviour that undermines and excludes people from certain racial or ethnic groups, people with disability and women.
• Re-thinking how business is done to accommodate the reasonable needs of workers with family responsibilities and workers with disability.
• Developing policies to protect workers from all forms of discrimination and harassment.
• Ensuring that discrimination and harassment policies are enforced, that staff are properly trained in those polices and that complaints are dealt with appropriately.

HREOC has developed a number of resources to provide practical information for employers to ensure that Australian workplaces are free from discrimination and harassment, such as the Good practice, good business guide^[174] and the Sexual Harassment Code of Practice.^[175] Employers can use these resources as part of internal induction sessions, or as a useful starting point when developing internal policies in the workplace. Further information is available via HREOC’s website: www.humanrights.gov.au The advantages of rising to the challenges go, of course, well beyond avoiding legal liability: a discrimination-free workplace is a diverse and healthy one that makes the most of the talents of its staff and allows them to contribute to the success of an organisation.