anti discrimination act - nsw


What does discrimination mean?

Discrimination means treating someone unfairly because they happen to belong to a particular group of people.

Most of us have prejudices against, or negative views of, groups of people who are different from ourselves. If we aren’t careful, these feelings can easily lead us to discriminate against people who belong to those groups.

In NSW many types of discrimination are against the law. The laws dealing with discrimination help give everyone in NSW an equal opportunity or a ‘fair go’.


What is the Anti-Discrimination Board of NSW?

The Anti-Discrimination Board of NSW is part of the NSW Attorney General’s Department. It administers the anti-discrimination laws.


WHAT TYPES OF DISCRIMINATION ARE AGAINST THE LAW IN NSW?

The following types of discrimination are against the law:


Sex Discrimination

When you are treated unfairly or harassed either because you are a woman or because you are a man. Discrimination against a woman because she is pregnant can also be sex discrimination. Sexual harassment is also against the law.


Race Discrimination

When you are treated unfairly or harassed because of your race, colour, ethnic background, ethno-religious background, descent or nationality.


Age Discrimination

When you are treated unfairly or harassed because of your age, for example, because people think you are too old, too young or middle aged. Forcing people to retire at the old retirement age is also against the law.


Marital Status Discrimination

When you are treated unfairly or harassed because of your particular marital status — for example, because you are single, or married, or living in a de facto relationship.


Homosexual or Lesbian Discrimination

When you are treated unfairly or harassed because you are gay, or someone thinks you are gay.


Disability Discrimination

When you are treated unfairly or harassed because you have a disability, or someone thinks you have a disability. It is also against the law to treat you unfairly or harass you because you had a disability in the past, or because you will or may get one in the future. Disability includes physical, intellectual and psychiatric disabilities, learning and emotional disorders, and any organism capable of causing disease (for example, HIV).


Transgender (Transsexuality) Discrimination

When you are treated unfairly or harassed because you are transgender or others think you are transgender. You are counted as transgender if you live or seek to live as a member of the opposite gender (sex) to your birth gender.


Carers Discrimination

When you are treated unfairly or harassed (in employment only) because you are responsible for caring for or supporting some adults or some children, or others think you are.


Discrimination because of who you are related to, or who you associate with


When you are treated unfairly or harassed because of the sex, race, age, marital status, homosexuality/lesbianism, transgender (transsexuality) or disability of one of your relatives, friends or work colleagues.

These types of discrimination are only against the law if they happen in one of the following places or circumstances:


AREAS OF DISCRIMINATION


Employment

This includes everything to do with work — applying for a job, what happens at work and leaving a job.


State education

This includes everything to do with State schools, colleges and universities — getting a place and what happens in them. Private educational institutions are allowed to discriminate against people because of their sex, marital status, homosexuality, transgender or disability. However, independent educational institutions are not allowed to discriminate against people because of their age or race. In addition, they must not allow or tolerate sexual harassment.


Goods and services

This includes buying goods, and getting services — for example, from banks, lawyers, government departments, hospitals, doctors, pubs, entertainment places, shops, local councils.


Accommodation

This includes everything to do with renting flats, houses, hotel and motel rooms, caravans and commercial premises.


Registered clubs

This includes becoming a member of a club, entry into a club and the services you get in the club.


Both ‘direct’ and ‘indirect’ discrimination are against the law.


Direct discrimination

means treatment that is obviously unfair or unequal. For example, if an employer won’t hire someone just because they are a woman this is likely to be direct sex discrimination.

Indirect discrimination

Means a requirement (or rule) that is the same for everyone but has an effect or result that is unequal and ‘unreasonable in all the circumstances’. For example, an employer who says that they need a person over 180 cm tall to do a job is likely to end up discriminating against women and some ethnic groups.

This is because women and people from some ethnic groups are less likely to be this height than men or people from other ethnic groups. If it is possible to show that the job does not need someone 180 cm tall, or that it could easily be adapted to suit people who aren’t that tall, then they could claim indirect sex discrimination or indirect race discrimination.


Racial vilification, homosexual vilification, HIV/AIDS and transgender vilification are also against the law

Racial vilification means any public act that could incite (encourage) racial hatred, serious racial contempt or severe racial ridicule. Homosexual vilification means any public act that could incite hatred, serious contempt or severe ridicule against lesbians and/or gay men. HIV/AIDS vilification means any public act that could incite hatred, serious contempt or severe ridicule against people who have HIV or AIDS.

Transgender vilification means any public act that could incite hatred, serious contempt or severe ridicule against people who are or are thought to be transgender.


Is there a time limit on complaints?

Yes. For a complaint to be accepted, the events involving unfair treatment must have occurred in the twelve months before the complaint is received by the Board. If you make a complaint about events, which occurred more than twelve months before you lodge your complaint, the Board may refuse to investigate your complaint.


Investigating a complaint

The Board has legal power to investigate your complaint, and if it’s against the law, to try to conciliate it. This means that we will try to help you and the person or organisation you are complaining about reach a private settlement that you both agree on. Any settlement will depend on the circumstances of your case and on what you and the other parties are willing to offer and accept.

It could be an apology, financial compensation, transfer to another position, the person who harassed you being transferred, reprimanded or sent on a training course about harassment, and so on.

Most complaints are conciliated. If yours isn’t, you may go to the Equal Opportunity Division of the Administrative Decisions Tribunal which is like a court. It provides a legal judgment that must be followed. However, very few cases need to go to the Tribunal and in some circumstance it’s possible to ask the Tribunal to keep your details confidential.


Some examples of discrimination complaints that have been handled by the Board


1. Sex discrimination

A female security guard was dismissed after complaining about being harassed by her supervisor. In conciliation the company agreed to pay her substantial compensation, give her a good reference and remove false records from her personnel file that said her work performance was poor.


2. Age discrimination

A man was told that he was dismissed from work because his employer wanted someone younger. After a conciliation conference, the employer acknowledged that the matter could have been handled better and gave the man an apology, a reference and financial compensation for the loss of his job.


3. Marital status discrimination

After being told by a real estate agent that the owner of the house wanted ‘a family to move in’, a single man and his friend complained to the Board. The real estate agent agreed that the agency had discriminated against the man, paid him financial compensation and agreed to train staff and owners about their responsibilities under anti-discrimination law.


4. Race discrimination

An Indian woman came to the Board for help after she was dismissed from her job. She believed it was because of her accent. Conciliation of the complaint resulted in a financial settlement, an apology and training of senior management.


5. Homosexual discrimination

A lesbian complained that she was barred from a local club because she is a lesbian. After we contacted the club, she applied to join and was successful.


6. Transgender discrimination

A woman alleged she was made redundant because her supervisor knew she was transgender and did not want to employ a ‘weirdo’. She was the only person made redundant and her position was later advertised. In conciliation, he company agreed to review its anti-discrimination policies and pay the complainant $4000.


7. Disability discrimination

A woman with an intellectual disability was refused a cheque account because she was not in ‘normal employment’, and because the local branch office felt that she would not be able to manage an account. (She worked in supported employment.) We contacted the organisation’s head office. They agreed to grant the woman a cheque account and instruct the branch office about fair customer service.


8. Pregnancy discrimination

After returning from maternity leave, a woman was dismissed from her job. She alleged that if she had not gone on maternity leave, she would not have lost her job. After conciliation, the employers offered her substantial financial compensation.

5