Discrimination

Disclaimer: The material in this factsheet is a general guide only. It is not legal advice. For legal advice about your own particular situation we encourage you to call the Free Legal Helpline on 1300 366 424. The legal information was correct at the time of publishing (April 2016), however may change without notice.

 

Acknowledgments:

The Legal Services Commission gratefully acknowledges the assistance of the National Children’s and Youth Legal Centre and Victoria Legal Aid in allowing the Legal Services Commission of South Australia to use and adapt existing content.
 

Discrimination and harassment

What is discrimination?

Discrimination is preferring, treating differently, or choosing one thing over another. You might prefer Macs over PCs or Coke over Pepsi. Discrimination then is not always wrong, but sometimes it is against the law.

Discrimination in a legal context usually means being treated unfairly because of a characteristic like age, gender, race or marital status (whether you are married or not). The law says that it is wrong to discriminate against someone on these grounds in certain areas of public life. It shouldn’t matter what your sex, race, marital status, religion, sexuality or gender identity is or what physical features, disabilities or political views you have. These are commonly called anti-discrimination laws.

There are some laws that allow for positive discrimination. That is, they make exceptions to anti-discrimination laws. These laws are aimed to help a group of people who have been unfairly discriminated against, to get them into positions they may not get otherwise because of that past discrimination. Examples of this are where a job might be offered to people of Aboriginal and Torres Strait Islander backgrounds.

When is discrimination against the law?

In South Australia, it is usually against the law to discriminate against you or harass you because of the following personal characteristics:

  • race, colour, nationality or social origin
  • sex, intersex status, gender identity or sexual orientation
  • age
  • medical or criminal records
  • physical, intellectual, psychiatric or mental disability
  • marital or relationship status or family or carer’s responsibilities
  • pregnancy (or potential pregnancy) or breastfeeding
  • religion
  • political opinion
  • trade union activity

In some cases, it can also be discrimination or harassment if someone treats you differently or offends you at work because of someone you know or are related to who has a particular characteristic (for example, you have a brother who is gay).  If you think this has happened to you, you may also be able to make a complaint about discrimination or harassment.

Discrimination, including sexual harassment, is against the law if it happens at school, at work, in accommodation (for example, staying at a hostel), during sporting activities, in local government, at public or publicly funded clubs and community organisations, or when you receive goods or services. For example, it’s illegal to refuse to serve someone because of their race or for a landlord or real estate agent not to rent a house to a couple because they’re unmarried. It’s also illegal for someone to discriminate against you because you’re friends with someone who has a characteristic that’s protected by the law (for example, a disability or certain religious views).

Some religious schools don’t have to follow all anti-discrimination laws – if you have been discriminated against at your school and you’re unsure what you can do, call the Legal Helpline on 1300 366 424.

It’s also illegal to vilify (spread negative information about) someone because of their racial or religious background. Vilification includes things like racist graffiti.

Discrimination at work

Everyone has the right to a workplace that is free from discrimination and harassment.   If you are being discriminated or harassed because of some personal characteristic (for example your race, age, gender or sexual orientation), you have the right to get help to make it stop.

Discrimination in the workplace happens when you are treated less favourably than others because of some lawfully protected characteristic about you (race, religion, gender, disability etc) and not because of your ability to do the job.

Discrimination can occur in the job application process, the conditions of employment (pay, hours etc.), benefits and training opportunities, promotions, dismissal, transfers and being fired.

What’s not discrimination?

It’s not discrimination if you are treated different at work for reasons like having poor performance and it has nothing to do with a personal characteristic (like your race, age or gender). Other examples where there wouldn’t be discrimination is if you don’t get a job because you don’t meet the job requirements (for example, you need to have a driver’s licence and you aren’t old enough to get one).

What is sexual harassment?

Sexual harassment is when someone behaves in a sexual way that offends, humiliates or intimidates you. It can include things like:

  • Telling dirty jokes;
  • Staring and leering;
  • Someone making comments about another person’s sexual behaviour;
  • offensive pictures, emails or text messages;
  • someone touching, pinching or brushing up against another person unnecessarily;
  • Someone kissing or hugging another person when they didn’t say yes to it.

It is also sexual harassment if you agree to someone behaving sexually towards you because you were scared or pushed into it. Sexual harassment can happen anywhere, for example at work, at school, or when helping out with a local sporting event.

Sexual harassment is against the law, and if the person’s behaviour is serious then the police could charge that person with a criminal offence for crimes such as stalking, indecent assault, assault or using a computer or phone service to harass – See the Law Handbook or call the Free Legal Helpline for more information on 1300 366 424.  
 

What is not sexual harassment?

It isn’t sexual harassment if both people agree to the sexual behaviour (see our fact sheet on Sex Consent about what it means to agree).

None of this stops you developing friendships, sexual or otherwise, with people your age.

 

What’s the difference between discrimination, harassment and bullying?

Discrimination is when someone treats you differently work based on a particular personal characteristic, like being pregnant or have a disability.  For example, it would be discrimination if you don’t get a promotion just because you have a disability. 

Harassment is when someone treats you in a way that is offensive, intimidating, humiliating or threatening AND that is done because you have a particular personal characteristic, like being gay, are from another country, or having a disability. 

Bullying is when someone repeatedly victimises, humiliates, threatens or intimidates you, and their actions pose a risk to workplace health and safety.  Bullying can also be harassment if it involves targeting you because of a characteristic (like your race or disability).  

Workplace bullying is also against the law and there are actions you can take. See the information on SafeWork SA’s website and the Fair Work Ombudsman’s website about Bullying and what can be done.
 

What you can do about bullying, discrimination and harassment

For workplace bullying, harassment and discrimination you can:

1. Try to talk to your employer about it.

2. If you are a member of a union, you can talk to your representative about what’s going on. They may be able to get your employer to do something about the problem.

3. Make a complaint to a government agency such as the Fair Work Ombudsman or SafeWork SA.

Depending on the type of discrimination or harassment, you may be able to make a complaint to different government offices.  It’s important to get advice about the different offices, because there are differences in the complaints process.  For example, some complaints processes can only result in an apology and mediation, but in others you may be able to sue for compensation.

There are time limits on when you can make a discrimination complaint, and these can be as short as 21 days from the time the discrimination happened.  That’s why it’s a good idea to get advice as soon as possible.

The following organisations can help you to find out who you should make your complaint to and may be able to assist with the complaint:

You might also be entitled to workers compensation if you have had to take sick leave due to mental illness and mental health damaged cased by the bullying, harassment or discrimination. See our chapter in the Law Handbook on Workers Compensation or call the Free Legal Help Line on 1300 366 424 for more information.

4. Make a complaint to the Australian Human Rights Commission or the Equal Opportunity Commission of South Australia (see below).
 

For all harassment and discrimination complaints (services, public spaces, clubs, schools, at work etc) you can make a complaint to either the Australian Human Rights Commission or the Equal Opportunity Commission of South Australia.

The Australian Human Rights Commission can accept complaints about discrimination in public life generally, including work, education, qualifications, goods and services and accommodation.

 The Commission’s role is to try to conciliate (help the parties work out) agreed solution.

Matters that do not resolve in this way can (with some exceptions) be referred to the Federal Court. There are some matter types where, if conciliation does not succeed, the complaint cannot be taken further. More detail about the role of the Australian Human Rights Commission is available from its website: https://humanrights.gov.au/. It also has a telephone enquiry line: 1300 656 419.

The Equal Opportunity Commission (SA) can accept complaints about discrimination in public life and work if they are covered by the Equal Opportunity Act 1984 (SA). Its role is also to conciliate between the parties. If conciliation does not succeed, the case can be referred to the Equal Opportunity Tribunal. Contact the Equal Opportunity Commission of South Australia on (08) 8207 1977 or visit their website at http://www.eoc.sa.gov.au.

 
NOTE: Choosing among the pathways is not a simple matter. Your choice can significantly affect your rights and you should seek advice first. Each agency can advise on whether it can handle a particular complaint, and will refer complaints to the other agency if necessary. It is always worth speaking to each agency before making your decision.
 

See also: the Law Handbook’s information on Discrimination, in particular on Making a Complaint.
 

People you can talk to for support

If you would like to speak to someone about bullying, discrimination or harassment that you are facing you can talk to someone from Headspace or Kids Helpline. They are a free and confidential counselling service for people under 25. You can call them or chat online at:

 

 

 




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