publications presentation and papers EEO Update - Making sure all your bases are covered | EEO Update - Making sure all your bases are covered |
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EEO Update - Making sure all your bases are covered Speaker: Rachel Drew, Associate, Macrossans LawyersThis presentation will address:
Meaning of equal employment opportunity and development of legal framework Equal employment opportunity is the principle that factors unrelated to a person's capacity to perform a job, for example, race, gender, political opinion, marital status, or sexual orientation of a person, should not be taken into account by employers when making decisions about employees. The origins of EEO law arise from international conventions dealing with the elimination of discrimination. The concept of EEO in Australian legislation was first seen in the Affirmative Action (Equal Employment Opportunity for Women) Act 1986 which required employers to actively promote equal opportunity for women. The law of EEO is now primarily sourced in discrimination legislation. We have a dual system of anti-discrimination law comprising Federal and State elements with a degree of overlap.
Racial Discrimination Act 1975 Sex Discrimination Act 1984 Disability Discrimination Act 1992 Human Rights and Equal Opportunity Act 1986 Workplace Relations Act 1996 Age Discrimination Bill currently before parliament (Intro 26/6/03) Queensland legislation is contained in the Anti-Discrimination Act 1991 and the Industrial Relations Act 1999. Legislative framework - anti-discrimination legislation Commonwealth and StateEssential features of the various discrimination legislation is that they prohibit less favourable treatment of a person on the basis of an attribute in certain areas of activities unless an exemption applies. The prohibition is against both direct and indirect discrimination.
In the employment context, anti-discrimination legislation prohibits discrimination in the processes for interviewing and making decisions about offering work and in relation to decisions made about existing employees. The legislation applies to decisions affecting:
Legislative framework - Commonwealth Workplace and State Industrial Relations legislation The Commonwealth and State industrial legislation each address equal employment opportunity by providing protection against discrimination for employees in relation to termination of employment. Both the Commonwealth Workplace Relations Act and the Queensland Industrial Relations Act prohibit dismissal on the basis of discrimination. The effect of this is to provide jurisdiction to the Industrial Relations Commissions to deal with complaints of discrimination, where the discrimination has resulted in a dismissal. A dismissed employee has the option of proceeding under either the discrimin ation or Industrial Relations legislation.The Acts also offer protection for sick or injured workers in relation to termination, prohibiting employers from dismissing a worker for a temporary absence from work because of illness. A temporary absence is an absence where the employee has provided a medical certificate (for an absence of more than 2 days) and the total unpaid absence in a year is less than 3 months. New developments in Commonwealth Sex Discrimination Act 1984 (Cth)The Sex Discrimination Act 1984 has recently been amended to explicitly recognise breastfeeding as a potential ground of unlawful discrimination. The amendments also clarify provisions about asking questions about pregnancy or potential pregnancy and using pregnancy-related medical information. It is now clear that the Commonwealth legislation makes it unlawful to ask women for information about pregnancy or potential pregnancy in the employment context. For example, because it is unlawful to refuse to employ a woman because she is or may become pregnant, it is unlawful to ask a woman in a job interview whether she is pregnant or about her plans for pregnancy, where the answers may affect the decision. The legislation also clarifies that requests for medical information about a woman's pregnancy or potential pregnancy may only be sought for legitimate reasons such as for occupational health and safety purposes. New developments in Queensland Anti-Discrimination legislation Significant amendments have also been made to the Queensland legislation. The amendments were made in December 2002 in response to a perception that the categories of protection in the Act no longer reflected community expectations of antidiscrimination legislation. Most significantly, the changes expanded the list of attributes protected from discrimination. The current, expanded list of attributes is (with the new or altered attributes marked with an asterisk):
The changes include:
retractions (both private and public) and to order employers to implement programs to eliminate unlawful discrimination. As a point of interest, the Act does not prevent discrimination in relation to the provision of assisted reproductive technology services if the discrimination is on the basis of marital status or sexuality (for example, if a person is in a same sex relationship). The purpose of this amendment is to continue to allow medical practitioners to make decisions about access to reproductive technology. COVERING YOUR BASES Application of policies The concept of equal employment opportunity must be applied to every policy operating in the workplace, in particular disciplinary policies and dress codes. All workplace policies should be carefully drafted to avoid breaching the anti-discrimination laws. An EEO program is a program designed to eliminate discrimination and to promote equal opportunity in relation to employment matters such as recruitment, promotions, transfers, training, and remuneration. In most cases, if an employer has an EEO policy it reads more like a statement rather than a practical policy. Developing that kind of policy statement is useful to present in the defence of a complaint of harassment. The policy statement can be as simple as: It is the policy of the employer to promote and ensure equal employment opportunity for all persons regardless of sex, age, race, disability or impairment, religious, political or trade union activity, family responsibilities, parental status, lawful sexual activity or sexual orientation. In order to achieve this policy, staff at all levels must be aware and understand these principles and efforts. This awareness and understanding will apply to all personnel decisions, practices and personal interactions among staff. The statement might also include:
Welfare measures and affirmative action There may be instances where an employer wants to establish an affirmative action policy for particular, for example a community organisation for people with disabilities might want to give special consideration to employing people with disabilities. The Queensland legislation specifically provides that: S104 A person may do an act to benefit the members of a group of people with an attribute for whose welfare the act was designed if the purpose of the act is not inconsistent with this Act. S105 A person may do an act to promote equal opportunity for a group of people with an attribute if the purpose of the act is not inconsistent with this Act, only until the purpose of equal opportunity is achieved. Those provisions allow the employer to take affirmative action to establish equal employment opportunity, but also to promote unequal opportunities in favour of people with attributes the Act is intended to protect. There are similar provisions in the Commonwealth set of Acts. These types of policies should be applied consistently, but flexibly. Ensure that the policy is applied to each situation that arises, but take into account the individual's particular circumstances. Exemptions from discrimination The primary exemptions from discrimination in relation to employment relate to the concept of "genuine occupational requirement" and unjustifiable hardship. Genuine occupational requirement If an employer wants to exclude a person with a certain attribute from employment, the employer must be able to show the decision to exclude was made on the basis of:
The most important step in this process is consideration of the inherent requirements of the position. For example, is it necessary that an employee colour vision or vision in both eyes to do their job. For an office job, probably not, and there have been cases relating to firemen and railway guards which have found that those disabilities are not genuine occupational requirements. There is specific provision in the State Act to allow an employer to fix reasonable terms in relation to an employee or prospective employee who, because of an impairment has a restricted capacity to do work genuinely and reasonably required for the position; or requires special conditions in order to be able to do the work. Unjustifiable hardship If, in order to avoid discriminatory conduct, an employer must supply special services or facilities, the employer may be able to object against that supply where the special consideration necessary to avoid discrimination would impose unjustifiable hardship. The question of whether the requirements impose unjustifiable hardship depends on all the relevant circumstances, including
For example, it would be discriminatory for a company to refuse to employ a person in a wheelchair on the basis that there is no appropriate access to the place of employment. However, it is not unlawful to discriminate on tha t ground if supplying access would be very expensive or would impose another significant hardship on the company. The size and financial capacity of the person seeking to rely on this exemption is relevant. For example, it is unlikely a state government department or authority could not rely on this exemption as they have significant financial resources available to them. On the other hand, a small business operated from rented premises may be able to successfully rely on the exemption because of the expense and inconvenience would be out of proportion to the benefit conferred. PARENTS AND CARERS - THE EMPLOYER'S RESPONSIBILITY? Legislative basis There have been numerous cases in the last couple of years dealing with the responsibilities of employers in relation to employees who have returned from maternity leave or are attempting to balance their work and family responsibilities. Employers are prohibited from discrimination on the basis of the responsibilities of a person to care for members of their family. The various legislation deals with the issues slightly differently:
Both the Commonwealth and Queensland legislation provides a very wide scope for prohibition from discrimination in this area. In relation to the attribute of family responsibilities, both the Sex Discrimination Act and the Anti-Discrimination Act defines family responsibilities to mean the responsibility to care for or support a dependent child or a member of the immediate family who is in need of care or support. Immediate family means a spouse or former spouse, a child of the person or the person's spouse or former spouse, including stepchild, adopted child, or past or present foster child, or a parent, grandparent, grandchild or sibling of the person or the person's spouse or former spouse. Full-time workers returning to part-time work
Hickie v Hunt & Hunt A termination of the contract of a female partner in a law firm where the firm indirectly imposed a condition that to retain her practice, she must work full time after returning from a period of 5 months maternity leave A condition which a higher proportion of females could not comply Amery -v- New South Wales
Bogle -v- Metropolitan Health Service Board
Found they made their decision on that basis rather than on any objective analysis of the situation. Gardiner v New South Wales Workcover Authority
CONCLUSION Covering your basis involves:
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