Discrimination and the Law
LAWS310
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Equality, Discrimination & the Law………..………..……….. 1
Equality as a fundamental value……….………... 1
Conceptualising equality, discrimination and the law………... 1
Equality……… 1
Discrimination……… 2
Discrimination and the Law……… 3
Anti-Discrimination Law……….………..………. 4
History of Anti-Discrimination……….……….. 4
The UN……….. 4
American Civil Rights Movement……… 4
Australian social context……….. 5
Development of legislation in Australia………. 5
Basic Framework of Anti-Discrimination Legislation………..……….. 6
Formulating a framework……… 6
Protected attributes……… 7
Types of discrimination………. 7
When is discrimination prohibited? ……… 7
Exceptions to the prohibitions………. 8
Enforcement and remedies……… 8
Fair Work Act……… 8
Positive duties………. 9
Human rights legislation……….. 9
Purvis v NSW [2003]……….……….……… 9
State of Victoria v Grant [2014] ……….. 10
The Attributes……….……….………. 12
What are the protected attributes?……….……… 12
How are the attributes protected?……….……….……….. 12
How are the attributes defined?………..………..………..………..………..……… 13
Scope of protection………..………..………..………..………..………..………..… 13
Scope of protection: characteristics………..………..………..………..………..………. 14
Multiple and intersectional discrimination………..………..………..………..………..…. 14
Race and related attributes………..………..………..………..………..………..……… 14
Sex and related attributes………..………..………..………..………..………..………. 15
Intersex status………..………..………..………..………..………..………..……….. 15
Sex, marital status, potential pregnancy, breastfeeding and family responsibilities………..……… 15
Sexual orientation……… 16
Gender identity………. 16
Disability……….. 17
Age……… 17
Other Attributes……… 17
DISCRIMINATION AND THE LAW
LAWS310Prohibited Conduct……….………. 19
Discrimination Law and Prohibited Conduct………. 19
Equality and Discrimination……….………. 19
Direct Discrimination……… 19
Indirect Discrimination………..………..………..………..………..………..……….. 20
Substantive equality: reasonable adjustments………..………..………..………..……….. 22
Disability standards and action plans………..………..………..………..………..…………. 22
Harassment………..………..………..………..………..……….. 22
Vilification……… 23
Assosciated Prohibitions……….. 24
Accessory liability……… 24
Advertising……….. 24
Seeking information………. 24
Victimisation……….. 24
Specific Areas of Prohibited Conduct……….……… 25
General scope of prohibition on discrimination……….… 25
Work………..………..………..………..………..………..………..……… 25
Recruting and hiring………..………..………..………..………..………..………. 26
Terms, condition and benefits of employment………..………..………..………..……….. 26
Dismissal………..………..………..………..………..………..……… 26
Any other detriment………..………..………..………..………..………..………. 27
Education………..………..………..………..………..………..………..……….. 27
Goods and Services………..………..………..………..………..………..………..… 27
Harassment Prohibitions………..………..………..………..………..………..…………. 28
Common Exceptions and Defences………..………..………..………..………..……… 28
Reasonableness………..………..………..………..………..………..………..…….. 28
Special measures………..………..………..………..………. 28
Statutory authority………..………..………..………..………..………..……….. 28
Religious beliefs………..………..………..………..………..………..………. 29
Unjustifable hardship………..………..………..………..………..………..………. 29
Work exceptions………..………..………..………..………..………..………..……. 30
Temporary exceptions………..………..………..………..………..………..……… 30
Types of Liability………... 31
Personal liability………. 31
Vicarious or attributed liability………. 31
All reasonable steps defence………. 31
Distinctive Features of the RDA………. 31
Procedures and Remedies……….……… 33
Processes and Institutions of Enforcement……… 33
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Making a complaint……… 33
Time limits………. 34
Choosing which avenue to pursue……… 34
Investigation and Conciliation of Complaints………. 35
Conciliation Process……… 35
Adjudication……….………. 35
Applying to a court or tribunal……….. 35
Who can complain?………... 36
The respondent……….……… 36
Interim procedures and interlocutory proceedings………. 36
Mediation……….. 36
Procedure and evidence at adjudication………. 36
Proof……….. 36
Access to legal representation and the role of agencies……… 37
Remedies……… 37
Positive Action………..………. 38
What is positive action?………. 38
When is postive action allowed?……….……… 38
Test for special measures……….. 38
Illustation using the SDA……….……… 39
Distinctive approach of the RDA……….……….. 39
When is positive action required?………. 40
Workplace Gender Equality Act……… 40
Public service duties………. 41
Anti-Discrimination in Employment……….……….. 42
Fair Work Act and General Protections……… 42
Section 351……… 42
Which employees are covered?……….. 42
What is prohibited?……….. 42
Exceptions to s 351………..………. 45
Excersing a workplace right……… 46
Enforcement……….. 46
Who can tak enforcement action?……….. 46
Dispute resolution……….. 46
Sanctions……… 47
Government Equality Measures……….………. 48
What can governments do to elimiate discrimination?……… 48
Protecting equality through bills of rights……… 48
Statutory bill of rights……… 48
Victorian Charter……….. 48
Constitutional bill of rights………. 49
Constitutional Protection………. 49
Proteting rights in the 3 arms of government……….………. 50
Protecting rights when making legislation……….……….………. 50
Protecting rights when interpreting legislation………. 50
Protecting rights through obligations on public authorities………. 50
Bringing an action to protect rights under the Victorian Charter……… 50
Positive Action………. 51
Procurement……….……….……….……….…….…….. 51
The Future of Anti-Discrimination Law……….……….. 52
Why does more need to be done for equality?………. 52
What role can and should law play in promoting equality……….. 52
Capacity to understand the law………. 52
Clarifying the law………...………….……… 52
Alternative directions……….. 52
Unified definition of discrimination……… 53
Duty to make reasonable adjustments………. 53
Shifting burden of proof………. 53
Costs………. 54
Expanding sanctions and public enforcement powers………. 54
Interpreting Specific Instruments……….………. 37
Delegated or subordinate legislation………. 37
Types of delegated legislation………….……….……….……….……….……….. 37
Interpretation of delegated legislation………….……….……….……….……….…….. 37
Codes……… 38
Quasi-legislative bodies and soft law………. 38
Constitution………….……….……….……….……….………..……….. 38
Other documents………….……….……….……….……….……….……… 38
Contracts………….……….……….……….……….……….……….…………. 38
Wills……….. 39
1 Equality as a Fundamental Value
• Equality and discrimination are fundamental values that underpin anti-discrimination laws.
• Equality is a fundamental value in liberal political theory and in democracy.
• An assumption that every individual should have equal liberties, including equal influence in government through one person one vote, is one of the foundations of modern Western societies.
• The development of anti-discrimination law was based on extending the liberal idea of equality beyond the political sphere, to assert that every person was entitled to be treated fairly and have equal chances in life.
• Australians thinks of themselves as egalitarianisms – this is a doctrine that prioritises equality for all people.
• Many inequalities have been eliminated as over time they have been seen as unjust (i.e women gaining right to vote, 1967 Indigenous referendum).
• Anti-discrimination laws have not provided a full response to inequality and discrimination, for example Indigenous people have less access to government services and health services.
• Inequalities associated with low socio-economic status can be addressed through policy measures such as social security payments.
• Anti-discrimination laws tackle inequalities based on specific protected attributes.
• These laws seek to ensure that socio-economic disadvantages are not concentrated mainly or entirely on people with protected attributes such as women or Indigenous people.
• Equality has a fundamental place in IHRL, evidenced by its primary position in many founding UN documents such as Art 1.3 of the UN Charter: rights must exist ‘without distinction as to race, sex, language or religion’.
• Equality only has limited protection in Australia as an element of human rights legislation through the:
• Australian Human Rights Commission Act 1986 (Cth) (AHRC Act).
• Charter of Human Rights and Responsibilities Act 2006 (Vic)
• Human Rights Act 2004 (ACT)
Conceptualising Equality, Discrimination and the Law
• Equality is an open concept with a wide range of possible meanings.
• Applying the idea of equality in law requires identifying and defining what inequality is being addressed, if a remedy is proposed, and how the remedy will address inequality.
• Since equality is so hard to define, law has taken a different approach by targeting inequality in the form of discrimination.
• Anti-discrimination laws seek to eliminate or reduce instances of discrimination.
• They rest on an implicit assumption that reducing discrimination will tend to increase equality.
• Legislative definitions of discrimination rest on the concept of equality.
• For example, prohibiting different treatment as discriminatory rests on an implied idea that equality consists of treating everyone the same.
• Equality and anti-discrimination laws in Australia are located within the social context of liberalism, in which individual liberty is a central value.
• Non-discrimination can be supported on the basis of equality or liberty theories.
Equality
• Basic idea of equality is Aristotle’s formulation of proportionality, that equality consists of treating likes and alikes differently.
• The above does not tell us what features should be used to assess likeness or unlikeness.
Formal equality
• The most obvious idea of equality is consistency: that everyone should be treated the same.
• Consistency is important where there are formal barriers to the freedoms of some groups, such as where segregation exists on the basis of race, sex or disability.
• The idea of equality as consistent is referred to as formal equality.
• Formal equality requires that people should be treated the same and not targeted for disadvantages because of their morally irrelevant attributes.
• Formal equality looks to process and treatment of people, not outcomes or other social facts.
EQUALITY, DISCRIMINATION & LAW
DISCRIMINATION• Focuses on inequalities that result from drawing distinctions between people through the application of identifiable rules or practices and looks at the process used by a decision maker.
• Formal equality can lead to unfairness as it can be unfair to treat people the same when they have had different opportunities in life as this may continue to effect disadvantage.
Equality of opportunity
• Equality of opportunity is seen as an important individual right that needs protection by law in order to preserve the idea of ‘merit’ in allocation of social goods.
• This rests on an assumption that the ‘race can be run’ fairly provided that the starting points can be equalised, thus acknowledging the need to provide adjustment to accommodate or compensate disadvantages.
• Individuals should not be denied an opportunity to compete fairly on their merits because of factors outside their control or that should not affect access to the opportunity in question, such as not having access to good quality schooling like their competitors for post school education.
• Equality of opportunity is an essential promise of liberalism to the individual.
• Limitations:
• A person’s ability is to some extent produced by the aspirations or opportunities offered by the environments that have experience, so it is not easy to equalise opportunities when they have substantially affected chances to develop aspirations or talents.
• Equality of opportunity assumes that allocating social goods by merit is a neutral and fair process, but does not subject the idea of merit to detailed scrutiny.
Substantive equality
• Substantive equality takes account of the situations of different individuals and the need for accommodation or compensation for previous disadvantages.
• This type of equality brings into focus the impact of social structures in which individuals are located and constrained.
• It looks to the effects of social structures and involves paying attention to the social reality as well as processes, acknowledging that unequal outcome are often a sign of the effects of social structures of unequal power and opportunity.
• Measure needed to bring about actual equality of results would not be acceptable in a liberal society.
• Fredman’s theory of substantive equality, 4 dimensions:
• Redistribution: concerned with removing the economic effects of prejudice and unequal opportunities and combating discrimination and ensuring that everyone’s dignity and capabilities are equally respected.
• Recognition: involves according respect and dignity to every person. It deals with the effects on individuals of stigma, stereotyping, humiliation and violence on grounds of gender, race, disability, sexual orientation or other status which can be experiences regardless of other disadvantage.
• Participation: involved genuine social inclusion and political voice.
• Transformation: idea that the accommodation needed to enable people in disadvantaged groups to participate is part of a broader need for structural change; unless social practices are transformed, they will continue to produce discrimination and disadvantage.
Equality before the law
• Refers to the idea of the rule of law – the principle that everyone in society should be treated equally by the law in being equally subject to the law, and that what everyone is subject to is the law, that is, a rule that is certain and knowable in advance.
• All can be subject to the rule of law even where it operates unfairly or only actually affects a subset of people.
• So the rule of law remains even where it prohibits the rich as well as the poor from stealing food and sleeping under bridges.
Discrimination
• Using a theory of equality it is possible to identify actions which are detrimental to equality because they unjustifiably impose disadvantages on people who have an attribute or characteristic of disadvantage.
• For law to provide a remedy for the imposition of disadvantage, it is necessary to define what conduct is prohibited.
• All legal prohibitions of discrimination rest on an implicit corresponding idea of equality.
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• Castlemaine Tooheys Ltd v SA (1990) 169 CLR 436: ‘the essence of the legal notion of discrimination lies in the unequal treatment of equals, and, conversely, in the equal treatment on unequals’.
• On the above view, discrimination occurs when equals are treated unequally, or when unequals are treated equally (when people treated the same by should be treated differently).
• Laws are drafted as rights of action, comprised of elements that must be proved to make out a case.
Direct discrimination
• Direct discrimination is where an attribute is used inappropriately when it should be treated as irrelevant.
• It occurs when a protected characteristic is used to disadvantage a person, whether consciously, intentionally, because of unconscious bias or as a result of common practice, making assumptions or using stereotypes to fill gaps in information about a person.
• Corresponds to formal equality.
• Involves treating someone less favourably or unfavourably on the ground of, or because of, their protected attribute.
• Where law prohibits treating someone with an attribute differently where that treatment is adverse to them, it is giving effect to an idea of equality as same treatment.
• Treating someone differently is an infringement of formal equality, which requires same treatment, and is legally condemned if it disadvantages the person on a prohibited basis.
• Direct discrimination rests on an assumption that treating people the same avoids discrimination.
• Insistence on same treatment means that it could stand as a barrier to attempts to ensure systemic change by taking positive action to achieve substantive equality for people with an attribute of disadvantage.
• Major disadvantage of direct discrimination is that it is not generally transformative.
Indirect discrimination
• Captures the idea that applying rules consistently to people who are not alike because of an attribute or its associated features is discriminatory because it does not acknowledge the disparate impact of the rule and make adjustments or accommodation to allow for that relevant difference.
• Corresponds to substantive equality.
• Looks to the effect of a requirement, condition or practice on people with and without an attribute of disadvantage.
• Indirect discrimination generally requires proof of a condition, requirement or practice that has a differential effect on the two groups, and then the application of a limiting test.
• The limiting test allows practices that have adverse effects on protected groups to continue if there is sufficient justification for continuing to use them in light of their discriminatory effect.
Systemic discrimination
• A concept that encompasses the ways in which social structures and practices produce disadvantages for some individuals, remains outside the scope of legal prohibition, as it is often pervasive, and it can be difficult to tie liability down to any particular duty bearer.
Discrimination and the Law
• Common law had no principle against discrimination and allowed people to act on the basis of factors that would now be considered discriminatory.
• Basic protection existed in some area such as the implied duty of a hotel keeper to accept a guest unless specific reasons for refusal existed, which did not include race.
• Nagle v Feilden [1966] 2 QB 633 (CA): Refusal to grant a racehorse trainers licence to a woman was an unlawful denial of the right to work.
• Anti-discrimination laws aims are often vague and the extent to which they tackle discrimination can be uncertain either deliberately or because they are hard to define.
• However, such laws do clarify that certain behaviours are no longer acceptable.
History of Anti-Discrimination Law
• Over the past century inequality has emerged as a public policy issue.
• Changing laws to remove exclusions and disadvantage was a fundamental step in promoting equality i.e allowing women to vote.
• Common law did not develop general protections against discrimination so it was all through legislative initiative.
• Basic protection existed in some area such as the implied duty of a hotel keeper to accept a guest unless specific reasons for refusal existed, which did not include race.
• Nagle v Feilden [1966] 2 QB 633 (CA): Refusal to grant a racehorse trainers licence to a woman was an unlawful denial of the right to work.
• Australian anti-discrimination laws developed from looking to the UK.
• Anti-discrimination laws were designed to challenge exclusion based on prejudice, assumptions and tradition.
• Protections against discrimination were first developed in respect of racial inequality and gender inequality.
• Later the law addressed other groups such as those with disabilities and sexual minorities.
The UN
• UN developed in response to WWII and succeeded the League of Nations, which had been created by the Treaty of Versailles which ended WWI.
• Treaty of Versailles also created the International Labour Organisation (ILO).
• ILO is a tripartite body with state, employers and employee representation.
• ILO purpose reaffirmed in 1944, Declaration of Philadelphia: ‘all human beings, irrespective or race, creed or sex, have the right to pursue both their material wellbeing and their spiritual development in conditions of freedom and dignity, of economic security and equal opportunity’.
• Purpose of the UN, UN Charter art 1: achieving ‘international co-operation in…promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion’.
• UDHR (1948):
• Art 1: ‘all human beings are born free and equal in dignity and rights’.
• Art 2: Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
• First international convention on discrimination was ILO Convention Concerning Discrimination in Respect of Occupation and Employment (1958) (ILO 111):
• Discrimination defined as: ‘any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation…’
• First UN discrimination treaty was the International Convention on the Elimination of all forms of Racial Discrimination (1965) (ICERD).
• Later had the ‘International Bill of Rights’ which includes the ICCPR, ICESCR and the UDHR.
• ICCPR art 2.1 & ICESCR art 2.2: right to enjoyment of all rights without distinction on the basis of ‘race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’.
• ICCPR has stand-alone equality right in art 26: ‘All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’.
• Art 26 specifies 4 dimensions for an equality right:
• Equality before the law,
• Equal protection of the law;
• Legal prohibition of discrimination; and right to equal and effective protection against discrimination.
• Have been many more convention dealing with specific areas of discrimination such as CEDAW.
American Civil Rights Movement
• Brown v Board of Education 347 US 483 (1954): Separate but equal doctrine. Supreme Court held that racially segregated schools were inherently unequal, and were in breach of 14th amendment’s equal protection guarantee.
