Direct and Indirect discrimination
Queensland anti-discrimination laws promote fairness by prohibiting discrimination, sexual harassment, victimisation and vilification. Unlawful discrimination can be either direct or indirect. You can lodge a complaint about either or both.
- What is direct discrimination?
- What is indirect discrimination?
- How do I decide whether our policy or practice is reasonable?
- Where can I get more information?
What is direct discrimination?
Direct discrimination happens when a person is treated less favourably because of one of the attributes (compared with someone who doesn't have that attribute) and in one of the areas covered by the Act.
- A person is asked at a job interview whether they have children. When they tell the interviewer that they have four children, the interviewer makes a remark about the person needing a lot of time off work if the children are sick, and says that the person won't be suitable for the position.
- An Aboriginal woman wanting to rent a house arrived to inspect it and was told that it had already been taken. The woman arranged for a non-Aboriginal friend to enquire about the house. When the friend rang she was told that it was still available, and so went to look at the house and was offered a lease. This was the third time that the Aboriginal woman had tried to rent a house through that agency. Despite the fact that the Aboriginal woman had a good tenancy record, each time she phoned she was told the house was available, and each time she met the agent she was told it had already been rented.
- A man answered a job advertisement for a receptionist and was told over the phone that because he is a man he'd be wasting his time.
- When a woman advised her employer that she was pregnant, she was moved to a lower-paying job out of the public view, because clients
don't want to look at people in your condition.
- A mature age worker was not selected for a promotion at work. The supervisor said that while he thought the worker could do the job,
you'll be retiring soon, so we're looking for someone who'll be here for a while.
What is indirect discrimination?
Indirect discrimination is often less obvious. Sometimes, a requirement or practice seems fair because it applies to everyone equally, but a closer look shows that some people are disadvantaged by it because of an attribute. This is because some people or groups of people, are unable or less able to comply with the requirement or practice. If the requirement or practice is not reasonable, it may be indirect discrimination.
- A school uniform policy requires hair to be neatly cut and turbans are not allowed to be worn.
(A Sikh student cannot comply because uncut hair and wearing turbans are requirements of the religion.)
- An employer has a policy of not letting any staff work part-time.
(People with children or family responsibilities could be disadvantaged.)
- A public building, while fitted with lifts, has a set of six steps at the front entrance. Entry for those needing to use the lift is through the back entrance near the industrial bins.
(Those using a wheelchair can't get into the building from the front entrance.)
- Minimum height requirements apply for jobs in a resort, for no apparent reason.
(People from an Asian background, or women, may not be able to meet the requirement.)
- Everyone entering a sporting venue has to present a driver's license as identification, because it has a photo. (Some people with a disability, or young people who can't drive, won't be able to get in.)
- All information about workplace health and safety in a factory, is printed in English.
(Those whose first language isn't English may be at risk.)
- A requirement for a job is that all applicants have ten years experience in the field.
(A young person could be well qualified but ineligible for the job.)
How do I decide whether a requirement or practice is reasonable?
The Act says that whether a term is reasonable depends on all the relevant circumstances of the case including:
- consequences for people who can't comply;
- the cost of alternatives; and
- the financial situation of the person imposing the requirement or practice.
Using the indirect discrimintion examples above, you might want to ask some of these questions:
- Are there any problems caused by allowing students to wear religious headdress? Shouldn't we encourage diversity and inclusion in the school community?
- Can I reorganise the workplace to cater for part-time workers? How much will it cost me to replace them if they resign? Am I being reasonable to staff? Are there some benefits I haven't thought of?
- Are there any good reasons for there only being steps at the front of the building? If I do put in a ramp, who else will find it easier? (delivery people, people with strollers etc). How much will it cost?
- Why do we have the minimum height requirement? If there's no good reason, what are the implications if we remove it? If there is a good reason, how do I explain it? Are we indirectly discriminating?
- Can we look at another option for identification, and will it cost us anything? Who else might it be easier for? (people under driver's age, people who have never driven or who have lost their licenses)
- What might happen if we have signs only in English? Could we look at a couple of other languages, or even graphics, that might mean all staff are more safety-conscious? Would the cost of this be less than a staff injury?
- If we take out the
ten years experiencerequirement, would we get a bigger pool of applicants? Are we being unreasonable? What's the downside of this? Is there any cost involved for us? What skills are we really looking for?
The thing to always keep in mind is the reasonableness of the requirement or practice.
Where can I get more information?
See our brochures on Making a Complaint and Responding to a Complaint for more detailed information.
We have a range of brochures on other types of discrimination, vilification and sexual harassment. These are available from the website or by contacting our nearest office.