Discrimination and victimisation

Discrimination and victimisation

Discrimination means being treated unfairly or not as well as others because of a protected characteristic like age, sex, gender identity, race or disability.

The law says that it is unlawful to discriminate against someone on these grounds in certain areas of public life. You can be discriminated against directly or indirectly.

For discrimination law to apply, all three things must be covered: the area of life, the type of protected characteristic, and the type of unlawful treatment.

Types of unlawful discrimination

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

Direct discrimination

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

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

Under Commonwealth anti-discrimination laws, you need to demonstrate that the person has treated you less favourably than they would treat someone in similar circumstances who does not have the same personal attribute that you have, such as your race, sex or disability. This means that you need to show that:

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

Indirect discrimination

Indirect discrimination is when a requirement, condition or practice (sometimes expressed as an expectation) which appears to be the same for everyone actually disadvantages people with certain protected attributes; and it is not reasonable in the circumstances. 

With indirect discrimination, you need to be able to show that being treated the same as everyone else puts you at a disadvantage because of your attribute.

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

Victoria’s discrimination laws

In Victoria, the Equal Opportunity Act makes it unlawful for someone to discriminate against you because of certain protected characteristics. These are:

  • age
  • breastfeeding
  • gender identity
  • disability (which also includes discrimination based on having an assistance aid supporting a person with disability – this includes equipment like a wheelchair or cane, an assistance dog or a person providing assistance or services to them.) 
  • employment activity (this means asking your employer about your entitlements, or raising a concern that you are not receiving your entitlements) 
  • industrial activity
  • lawful sexual activity
  • marital status
  • status as a parent or carer
  • physical features
  • pregnancy
  • race
  • sex
  • sexual orientation
  • political or religious beliefs or activities
  • an expunged homosexual conviction (a person who has successfully applied to have their historic homosexual conviction removed from the record)
  • personal association with anyone who has any of these characteristics.

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

The Victorian Equal Opportunity and Human Rights Commission is responsible for administering Victoria's discrimination laws. See their website for a full list of the areas and types of discrimination.

Commonwealth discrimination laws

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

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

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

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

Discrimination under the Fair Work Act

The Fair Work Act 2009 also aims to protect employees from discrimination at work. Under the Act, it is also unlawful for an employer to take adverse action (for example, terminating someone’s employment) because of their:

  • race or colour
  • sex
  • sexual orientation
  • age
  • disability
  • marital status
  • family or carer’s responsibilities
  • pregnancy
  • religion
  • political opinion
  • national extraction or social origin
  • workplace rights or industrial activities.

The Fair Work Act deals with discrimination in a different way to anti-discrimination laws.

You do not need to demonstrate that your employer has directly or indirectly discriminated against you using the tests set out above. Instead, you need to demonstrate that an employer has taken ‘adverse action’ (for example, terminating your employment, offering you fewer shifts or treating you unfavourably at work) because of your protected attribute (for example, your race, pregnancy, disability or religion).

The Fair Work Commission is responsible for hearing claims that an employer has breached the Fair Work Act, including discrimination in the workplace. The Fair Work Ombudsman is responsible for investigating breaches of the Fair Work Act. 

Discrimination, including sexual harassment, is against the law if it happens:

  • at work, whether you are a job applicant, an employee, or a contractor
  • at school
  • in accommodation (for example, staying at a hostel)
  • during sporting activities
  • in local government
  • at public or publicly funded clubs and community organisations
  • when you receive goods or services.

For example, it is unlawful:

  • to refuse to serve someone because of their race
  • for a landlord or real estate agent not to rent a house to a couple because they have children
  • for an employer to dismiss an employee because they are pregnant.

Victimisation

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

However, victimisation is unlawful under discrimination laws.

Victimisation is when someone subjects, or threatens to subject, another person to some form of detriment or harm, because they have:

  • lodged a complaint of discrimination or sexual harassment
  • provided information or documents regarding a complaint of discrimination or sexual harassment
  • reasonably asserted their rights, or supported someone else’s rights, under anti-discrimination laws
  • made an allegation that a person has acted unlawfully under anti-discrimination laws.

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

Discriminatory questions

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

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

If you think this applies to you get legal advice.

Exceptions that apply to discrimination laws

Exception provisions are like ‘defences’. When an exception applies to certain conduct, this means that the conduct may be discriminatory, but is not unlawful. Some examples of exceptions are where:

  • special services or benefits are only supplied to people with protected characteristics, such as people with a disability
  • an action is taken to protect the health and safety of a person or the public generally
  • other (Victorian or Commonwealth) laws authorise discrimination, such as only employing people as drivers if they are old enough to hold a licence.

Exemptions that apply to equal opportunity laws

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

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

Make a complaint

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

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

Get help

Find out how you can get help with discrimination, harassment and bullying.