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Discrimination toolkit

Discrimination Basics

Discrimination Basics cover pictureGrounds and areas of discrimination

I’ve been treated unfairly. Is it against the law?

Most people are treated unfairly at some stage. They might feel bullied, excluded, or victimised. As we all know, this sort of behaviour can have a big impact on your life. We often hear people say they’ve been ‘discriminated against’ when they experience unfair treatment. But not all unfair treatment is discrimination that is against the law.

In NSW, discrimination is covered by both state (NSW) laws and federal (Australian) laws – the ‘state system’ and the ‘federal system’. These discrimination laws cover certain types of unfair treatment (called ‘grounds’) in certain circumstances (called ‘areas’).

From here on, when we use the word ‘discrimination’, we mean ‘unlawful discrimination’.

Discrimination is a complex and technical area of law. We can’t guarantee that your problem will be covered by the law. But here’s a basic formula you can use to help you work out if you might have a discrimination case:

Ground + Area = Discrimination

What are the grounds of unlawful discrimination?

Step 1: To work out whether you can take legal action for discrimination, the first thing you need to think about is the reason why you have been treated unfairly. Under discrimination law, these reasons are called ‘grounds’, or ‘characteristics’.

Unlawful discrimination happens when you are treated unfairly because you have one of these characteristics.

The grounds of discrimination covered by state discrimination laws and federal discrimination laws are similar, but not exactly the same. Sometimes the way a ground is defined will mean that your situation is covered by the federal laws but not the state laws, or vice versa. Sometimes these differences can be tricky to work out.

Read the checklist below, which covers all the ‘grounds’ for discrimination under state and federal discrimination laws, then note any of the points that apply to you.

Checkbox icon    Grounds checklist

I have been treated unfairly or harassed because of my:

  • Race
  • Sex
  • Marital, domestic or relationship status
  • Pregnancy or potential pregnancy
  • Breastfeeding
  • Homosexuality or other sexual orientation
  • Gender identity (including trans, transgender and gender diverse)
  • Intersex status
  • Age
  • Disability
  • Carer’s or family responsibilities
  • Association with someone who has one of these characteristics

OR I have experienced:

  • Sexual harassment
  • Vilification
  • Victimisation

If you haven’t noted any points, it means you probably don’t have a ground for a discrimination complaint.

If you identified points that apply to you, move on to Step 2.

Race discrimination includes being discriminated against because of your race, colour, descent, nationality, ethnic or ethno-religious origin.

Sex discrimination is being discriminated against because of your sex, including because you are male or female.

Marital or relationship status discrimination is being discriminated against because you are married, married but living separately, single, divorced, widowed or in a de facto relationship. It applies to opposite sex and same-sex relationships.

Pregnancy discrimination is being discriminated against because you are pregnant or might become pregnant.

Homosexuality discrimination is being discriminated against because you are gay or lesbian.

Sexual orientation discrimination is being discriminated against because of your sexual orientation, including because you are gay, lesbian or heterosexual.

Intersex status discrimination is being discriminated against because you have physical, hormonal or genetic features that are neither wholly female or wholly male, are a combination of female and male or are neither female nor male.

Gender identity (including transgender discrimination) is being discriminated against because of your gender related identity, appearance or mannerisms.

Age discrimination is being discriminated against because you are too young or too old. It is also against the law to force you to retire because of your age.

Disability discrimination and harassment includes being discriminated against or harassed because of a physical, intellectual, psychiatric, sensory or other disability, illness or disease. It includes a disability you have now, have had in the past, might have in the future or which somone assumes you have. Discrimination against people who have a carer, assistant, assistance animal such as a guide dog or a disability aid is also against the law.

Carers’ or family responsibility discrimination includes being discriminated against because you are responsible for caring for a dependent child or step-child or caring for relatives such as an immediate family member, spouse or former spouse, parent or step-parent, brother or sister, step-brother or step-sister, grandparent or step-grandparent, grandchild or step-grandchild.

Story icon   Mark's story

Mark works in a factory and doesn’t get on with his boss, Greg. Mark says that Greg picks on him, hassles him about taking breaks and won’t give him any overtime. Mark thinks Greg doesn’t like him because he is more outgoing and popular than Greg.

Unfortunately for Mark, this is not unlawful discrimination, because he can’t link his unfair treatment to a ground of discrimination (eg. race or disability). But he might have other options for sorting out the problem. He could talk to his union delegate, a more senior manager at the factory, or a lawyer, to work out what to do. He might have a bullying case against his employer for example.

Sometimes you might be covered by discrimination law even if you don’t actually have one of the characteristics or ‘grounds’ that is protected. If someone treats you unfairly because they believe you have one of these characteristics (even if you don’t) you might still be able to use discrimination law. For example, if your employer treats you differently because they think you have a disability, and you don’t, you would have ‘a ground’ under discrimination law.

Story icon   Jose's story

Jose works at a medical centre as a casual receptionist. He overhears one of the senior doctors saying to the practice manager that he doesn’t think ‘having a queer at the front desk is a good look’. Shortly after this Jose’s shifts are reduced from four a week to one only. None of the other casuals have had their shifts reduced. Jose is not gay but believes he has been discriminated against because the bosses think he is. He has a ground to make a discrimination complaint.

Is it direct or indirect discrimination?

Under Australian discrimination law, there are two types of discrimination.

The first is called direct discrimination. This is where the unfair treatment is obvious – you are treated unfairly because of one of the ‘grounds’ or ‘characteristics’ compared to someone else who does not have that characteristic: for example, if someone says you cannot rent a house because you are Aboriginal, or if you apply for a job and are told that you are too old to be in the running, even though you have the skills, qualifications and experience they are looking for.

The second type of discrimination covered by the law is indirect discrimination. This is where the discrimination is less obvious. A rule or policy might look fair because it applies to everybody, but in practice it has an unfair and unreasonable effect on a particular group of people.

These are some examples of indirect discrimination:

  • The fire brigade used to have a rule that all fire officers had to be a minimum height. Although this policy applied to everyone, it disadvantaged women and men from some ethnic backgrounds. The rule was indirectly discriminatory because both those groups were likely to be shorter than the required minimum height and you didn’t need to be that tall to do the job.
  • Where an employer makes all employees work full time hours. This is more likely to disadvantage women with child or other family carer responsibilities. It is also more likely to disadvantage workers with a disability who might not be able to work full time.
  • Where an employer makes all employees pass a physical fitness test and the level of fitness the employer wants is not needed for the job. This might disadvantage workers with a disability or older workers.

Story icon   Eva's story

Eva works in retail. Team meetings have always been held once a week during lunchtime. The manager sends an email to all staff saying that team meetings will now be held at 8.00am instead of lunchtime and that attendance is compulsory. Eva has two children who need to be dropped at school every morning.

Eva could make a complaint of indirect discrimination on the grounds of her carer’s responsibilities and her sex. This is because her manager is imposing a blanket rule on everyone that doesn’t single anyone out but has the practical effect of being more likely to disadvantage people caring for children and women (because women are statistically more likely than men to be the primary carers of children).

Story icon   Ravi's story

Ravi is a high school student at a public school. He has a disability that causes incontinence. This means that when he needs to go to the toilet, he has to get there quickly. There is a toilet just outside his classroom but it is kept locked. The school has a strict rule that says no students are allowed to use that toilet. They must use another toilet that is further away. Students without a disability have no problem following the rule, but students with a disability like Ravi’s are not able to get to that toilet in time without embarrassing themselves. Ravi could make a complaint of indirect disability discrimination against the school.

What areas of life are covered by discrimination law?

Step 2: The second step in working out if you might have a discrimination case is to find out whether or not your problem happened in an area of life that is covered by discrimination law. Discrimination is only against the law when it happens in an area of public activity, such as employment, education, accommodation, buying goods and using services. Discrimination law does not cover your private relationships with family members, friends or flatmates, for example.

The checklist below lists the areas of life where discrimination is unlawful under state and/or federal discrimination laws. Remember that some situations might only be covered by federal laws but not state laws, or vice versa. Note any of the points that describe where discrimination happened to you.

Checkbox icon   Areas checklist

I was treated unfairly in:

  • Employment
  • Education
  • Accommodation
  • Clubs and associations
  • Goods and services
  • Accessing public places or facilities
  • The administration of Commonwealth laws and programs
  • Sport
  • Land

Employment includes anything to do with work, such as applying for a job, getting a promotion, training, working conditions, losing your job or other work entitlements.

Education covers all educational institutions including schools, TAFEs, universities or colleges. It includes applying for enrollment, what happens during your studies and being suspended or expelled.

Accommodation includes renting a property, buying a property, using a hotel, hostel or care facility or dealing with a real estate agent or landlord.

Clubs and associations includes all registered clubs and associations, such as RSL or leagues clubs.

Goods and services includes accessing services or buying products from government departments (eg. Centrelink, police and public hospitals) or private businesses (eg. banks, private hospitals, shops, pubs or restaurants).

Public places and facilities includes accessing public space or transport, for example.

Administration of Commonwealth laws and programs covers how federal laws and programs are administered and run.

Sport covers trying to participate in any sporting activities, including administrative or coaching activities in sport.

Land covers dealings which involve the disposal or sale of an estate or an interest in land. It does not cover land dealings under a Will or by gift.

Story icon   Mario's story

Mario has epilepsy and had a seizure at the local supermarket. The manager of the shop told him this scared the other customers so he is not allowed to shop there anymore. This situation is covered by discrimination law because Mario has a ‘ground’ (disability) and an ‘area’ (using a service / buying goods).