Proving a complaint
A person can make a complaint to the Commission if they believe that they have been:
- discriminated against;
- sexually harassed;
- subjected to other behaviour prohibited by the Anti-Discrimination Act 1991 or
- suffered a reprisal for making a public interest disclosure.
Responsibility of person complaining
The person who makes the complaint must prove that the act of discrimination took place:
- in an area of public life prohibited by the Act, such as employment, education, accommodation, acquiring goods or services etc;
- in a comparative context, it amounted to less favourable treatment than another person would have received; and
- because of an attribute the person has or is presumed to have.
The person's attribute must have been a significant factor influencing the discriminatory treatment.
Proving indirect discrimination
In cases of indirect discrimination, it is necessary for the person who makes the complaint to produce evidence that people with a particular attribute are disadvantaged by the conduct or policy or the person or body they are complaining about.
The responsibility then falls upon the person responding to the complaint to prove that those requirements or conditions were reasonable in the circumstances. For example, if a job requirement of a minimum height or weight disadvantages women who apply for the job, the employer must prove that those requirements were necessary to successfully perform the job.
Conduct exempted by the Act
There are some exceptions to the operation of the Act, known as exemptions, which allow conduct which would otherwise be unlawful. It is the responsibility of the person responding to the complaint to prove that the exemption applies in these circumstances.