Equal Opportunity – Employees

Definitions

Discrimination
Discrimination is unfavourable treatment of a person in an area of public life (such as in employment and education) due to one of the following protected attributes:

• age
• breastfeeding
• carer and parental status
• disability
• employment activity
• gender identity (which includes gender expression)
• industrial activity
• intersex status
• lawful sexual activity
• marital or relationship status
• physical features
• political belief or activity
• pregnancy
• race (including colour, nationality, ethnicity and ethnic origin)
• religious belief or activity
• sex
• sexual orientation
• expunged homosexual conviction
• personal association with anyone who is identified by reference to any of the above protected attributes

Both State and Federal legislation prohibit direct and indirect discrimination.

Direct discrimination
Direct discriminiation is when a person or group of people treats, or proposes to treat, a person with a protected attribute unfavourably, because of that attribute. In determining whether a person directly discriminates, it is irrelevant whether or not the attribute is the only, or dominant reason for the unfavourable treatment, provided that it is a substantial reason.

Indirect discrimination
Indirect discrimination occurs if a person imposes or proposes to impose, an unreasonable requirement, condition or practice that has, or is likely to have, the effect of disadvantaging persons or groups of people with a protected attribute. Whether a requirement, condition or practice (or proposed requirement, condition or practice) is reasonable depends on all relevant circumstances.

Sexual harassment
Sexual harassment is unwelcome conduct of a sexual nature towards another person which could reasonably be expected to make that other person feel offended, humiliated or intimidated. Sexual harassment can be physical, verbal, visual or written. Sexual harassment is an unacceptable form of behaviour that will not be tolerated under any circumstances. Refer to the Department’s Sexual Harassment — Employees Policy on the Schools Policy and Advisory Library.

Victimisation
Victimisation is when it is unlawful for a person to subject or to threaten to subject another person to any detriment because the other person, or someone associated with the other person, has made an allegation or complaint of discrimination or harassment on the basis of a protected attribute or asserted their rights under this policy or other relevant legislation.

Vilification
Vilification is when a person engages in conduct that incites hatred towards, serious contempt for, or revulsion or severe ridicule of, a person or group of people on the basis of race or religion. This can occur through a single act or a number of acts over a period of time.

Positive duty
The Department has a positive duty to take reasonable and proportionate measures to eliminate discrimination, sexual or other forms of harassment and victimisation from the workplace. This means for example, taking measures to ensure staff are undertaking training and regularly assessing workplace compliance to achieve improvement.

Vicarious liability
If an employee contravenes this Policy, the Department may be held liable for the conduct of that employee. Vicarious liability can also extend to the actions of agents of the Department, such as recruitment firms and consultants. It is therefore important that this Policy is understood by agents of the Department, including those responsible for hiring employees, including external recruiting firms.

Reasonable adjustments
Both Commonwealth and Victorian legislation require employers to make reasonable adjustments for employees with a disability. A range of factors must be considered in determining whether an adjustment is reasonable, including:

• the person’s circumstances, including the nature of their disability
• the nature of the employee’s role or the role that is being offered
• the nature of the adjustment required to accommodate the employee’s disability
• the financial circumstances of the employer
• the size and nature of the workplace
• the effect on the workplace of making the adjustment, including the financial impact, the number of persons who would benefit or be disadvantaged by doing so, and the impact on efficiency and productivity and, if applicable, on customer service of doing so
• the consequences for the person or employee of not making the adjustment
• the consequences for the employer of making the adjustment.

Refer to the Disability and Reasonable Adjustment— Employees for further information.