It is unlawful for employers to discriminate against job applicants and employees (including contract workers, those working on a commission basis, and partners in a firm) with parental or carer responsibilities. Because different laws may apply in different circumstances, there is no single set of rules that applies to every case. However, this section summarises key obligations and also provides links to other websites or sources where further information may be obtained.

You may also find this booklet helpful:

Family Responisbilities - Guidelines for Employers and Employees, produced by Industrial Relations Victoria and the Victorian Equal Opportunity and Human Rights Commission.

What laws apply?

In Victoria, both Victorian and Commonwealth laws apply to protect job applicants and employees with parental, family or carer responsibilities from discrimination. The law also protects workers from discrimination on a number of other grounds (detailed below), and from sexual harassment. In some cases, only Victorian laws will apply. In most cases, both Victorian and Commonwealth laws will apply and a person may choose to lodge a complaint under either law. This is why it is important to be aware of all the laws and to contact the Victorian Equal Opportunity and Human Rights Commission or the Australian Human Rights Commission if you would like further information.

The law recognises that the needs of the enterprise and the worker need to be balanced and each case will be considered on its facts. There are also several exceptions to the general rules concerning discrimination and these need to be checked in order to assess any situation of potential discrimination.

These are the main laws relevant to discrimination and sexual harassment in the workplace:

• Equal Opportunity Act 1995 (Vic)
  
• Racial and Religious Tolerance Act 2001 (Vic)
  
• Human Rights and Equal Opportunity Act 1986 (Cth)
  
• Racial Discrimination Act 1975 (Cth)
  
• Sex Discrimination Act 1984 (Cth)
  
• Disability Discrimination Act 1992 (Cth)
  
• Age Discrimination Act 2004 (Cth)
  
• Workplace Relations Act 1996 (Cth)

In combination, these laws provide various levels of protection from discrimination and sexual harassment for workers who have parental, family or carer responsibilities and also for workers with other characteristics, such as disability or religious belief. The table below summarises how and when they apply.

What is discrimination?

'Discrimination' describes a broad range of behaviour. It can occur even when everyone is treated in the same way, if the same treatment unreasonably disadvantages some people who have a particular personal characteristic (as with indirect discrimination). It does not matter if there was no intention to discriminate, because motive is irrelevant to discrimination.

For discrimination to be unlawful, the behaviour must also be linked to one of the characteristics protected by law. However, discrimination may be against the law even if the person does not presently have the characteristics. It is enough if the person:

• once had
• may in the future have, or
• is assumed to have

one of the protected characteristics, such as parental, family or carer responsibilities.

For example, it would be discriminatory for an employer to refuse to send a staff member on a training course on the assumption that she is, or may be pregnant and the employer fears that benefit of the training may be lost to the company.

There are a number of exceptions in the legislation which means the discrimination will not be unlawful in some circumstances. The fact that an exception may or may not apply does not prevent a person making a complaint of unlawful discrimination, but it may mean that the relevant Commission declines to take further action on the complaint if it is satisfied that the exception would apply.

For further information, go to the Business Victoria - Equal Opportunity section, the Victorian Equal Opportunity and Human Rights Commission or the Australian Human Rights Commission.

Direct Discrimination

Direct discrimination generally involves treating or proposing to treat somebody less favourably than others because that person has a protected characteristic (such as being a parent or carer).

For example, an employer who refuses to accept job applications from applicants who have young children would be directly discriminating against those applicants on the basis of their parental or carer responsibilities.

Indirect Discrimination

Indirect discrimination occurs where, although people are treated equally, a person with one of the protected characteristics suffers a disadvantage. It generally involves imposing an unreasonable condition or requirement which a person with a protected personal chacteristic is unable to comply with.

For example, an employer who requires all employees to attend weekly planning meetings at 6.30 pm is treating everyone the same, but people who have to collect children from school or be at home to prepare dinner for an elderly parent find it more difficult to cope with a requirement to attend such meetings, because of their parental or carer responsibilities. The requirement may also be unreasonable because the meeting could perhaps be held at other times, during normal working hours.

Failure to Accommodate Parents� or Carers� Responsibilities

From 1 September 2008, changes to the Equal Opportunity Act 1995 (Vic) provide additional protection to parents and carers in relation to their working arrangements. The new laws set out that it is discrimination for an employer to unreasonably refuse to accommodate the parental or carer responsibilities of a person offered employment or an employee (including contract workers, those working on a commission basis, and partners in a firm) in working arrangements. The changes clarify and extend the existing protections available to parents and carers in the workforce.

This means that an employer should not refuse flexible work arrangements for workers with family responsibilities without considering all of the circumstances, and requests should be seriously considered. The new laws provide that when deciding whether a refusal to change working arrangements is unreasonable, all relevant facts and circumstances will be considered, including:

• the person's circumstances, including the nature of his or her responsibilities as a parent or carer and the nature of the role that is on offer
• the nature of the arrangements required to accommodate those responsibilities
• the financial circumstances of the employer (or hirer of a contract worker)
• the size and nature of the workplace and the employer's (or hirer�s) business
• the effect on the workplace and the employer�s (or hirer�s) business of accommodating those responsibilities

In many cases, there may be viable options for making arrangements that will suit both employers and employees. This requires a balancing of the interests of the business and the interests of the worker. The Victorian Equal Opportunity and Human Rights Commission and Industrial Relations Victoria have produced guidelines on family responsibilities to help employers and employees understand and comply with their obligations: Family Responsibilities: New guidelines for employers and employees.

Discrimination in advertisements and interviews

Job advertisements and job interviews are also covered by anti-discrimination law

It is unlawful in Victoria to publish or display, or authorise the publication or display, of a discriminatory advertisement. This means that certain statements should not appear in advertisements. For example, because the law protects people with parental, family or carer responsibilities from discrimination, it would be discriminatory for an advertisement to say that a job would be unsuitable for workers with young children, because the job requires a lot of travel. Similarly, an advertisement which says that the employer is looking for a young lady for a receptionist position discriminates against older people and men.

Anti-discrimination laws also cover requests for information, such as interview questions, that could be used to discriminate against a person. This means that certain questions should not be asked in interviews. For example, because the law protects people with parental, family or carer responsibilities from discrimination, an interviewer should not ask applicants if they have young children and, if so, how they intend to look after them if appointed to the job. Similarly, if applicants are asked, in an interview, how old they are, that could be discrimination on the basis of age. Under the Equal Opportunity Act 1995 (Vic), very small businesses are exempted from the provisions concerning discrimination in the offering of employment, but because this exemption does not apply under Federal laws, it should not be assumed that the exemption will always apply.

For further information, go to the Business Victoria - Equal Opportunity section, the Victorian Equal Opportunity and Human Rights Commission or the Australian Human Rights Commission.

Discrimination in termination of employment or engagement

It is unlawful to terminate an employee�s employment (and, in some cases, a contract worker�s engagement) in a discriminatory way, including on the basis of their parental, family or carer responsibilities. For more information on termination of employment, go to the section on Termination of employment or engagement.