What is Discrimination?
Discrimination is the less favourable treatment of a person because of an ‘identifiable attribute or characteristic’. Identifiable attributes include age, race, religious affiliation, disability and more. These are also commonly referred to as a ‘protected attributes’.
Discrimination can occur against someone in relation to their work, education, accommodation or in relation to certain other spaces or scenarios where a person has been treated unfairly due to a particular attribute or characteristic (with the distinct exclusion of public spaces).
Our team of experienced solicitors have extensive experience in defending and pursuing people who have been parties to discrimination, sexual harassment, vilification and victimisation.
Discrimination can be categorised into either direct or indirect discrimination.
Direct discrimination is constituted by subjecting a person to less favourable treatment than another person because of an attribute or characteristic they possess (e.g. race, gender, sexuality or political or religious belief).
Indirect discrimination occurs when someone treats everyone (generally a particular group of people, such as employees of a particular company) neutrally in theory, but a particular aspect of that treatment effectively disadvantages a particular individual or group of individuals (e.g. an employer insisting that all employees work on a particular date that is, in fact, a religious holiday for some employees, a job advertisement stating that all applicants must have a drivers license which may put some disabled people to a disadvantage, or a workplace that lacks disabled access that would indirectly discriminate against employees who use wheelchairs).
Discrimination may also occur if someone thinks you might possess a particular attribute or characteristic at some point in the future (e.g. your employer thinks you might become pregnant soon, and treats you differently as a result).
All discrimination legislation in Australia requires that the discrimination be based on the presence of a particular ‘attribute’ or ‘characteristic’. These attributes can be:
- Gender Identity
- Religious Belief
- Political Belief
- Disability or Impairment
- Relationship Status
- Political Activity
- Trade Union Activity
- Employment Association Activity
- Parental Status
- Family Responsibility
- Physical Features
- Marital Status
Section 8 of the Anti-Discrimination Act 1991 (Qld) states that certain conduct may constitute discrimination if the conduct or treatment is on the basis of:
- the actual attribute itself;
- a characteristic that a person with the attribute would generally have;
- a characteristic that is often imputed to a person with the actual attribute;
- an attribute that a person is presumed to have; or
- an attribute that a person previously had.
This means that discrimination does not necessarily have to be based on the actual attribute of a person – it can be based on a characteristic relating to an attribute, or even a previous or perceived attribute.
All Australian legislation relating to discrimination is complaint-based, meaning that an aggrieved person must complain to an administrative agency in order for their discrimination matter to be heard.
The aggrieved person must show that they were discriminated against on the basis of a particular attribute or characteristic, and that he or she received less favourable treatment as a result of that attribute or characteristic. For example, if someone is being discriminated against because of a disability, in determining whether a person has been treated ‘less favourably’, that person’s treatment will be compared with that of a person in the same employment situation who does not have the same characteristic or attribute. If there is a difference in the treatment of the two people in the same situation, the next issue will be to determine whether the difference in treatment is actually due to the characteristic or attribute, or whether there may be some other cause behind the difference in treatment.
For more information about discrimination call Gibbs Wright for a confidential, obligation-free consultation.
What are the damages available for Discrimination claims?
Damages will be awarded depending on the circumstances of each individual case. However, the type of remedies that may be available for a claim for discrimination include:
- General Damages;
- Aggravated Damages;
- Exemplary Damages;
- Mental Injury and or Loss;
- Physical Injury and or Loss; and
- Compensation for Hurt, Humiliation and Distress.
How we can help you
Whether you are seeking advice regarding making a claim for discrimination, or you wish to dispute a discrimination allegation, we are here to help. We can assist you with all aspects of discrimination law to help you achieve a favourable outcome.
If you have been discriminated against, or you need to defend a discrimination claim, Gibbs Wright is here to fight for you.