Frequently Asked Questions
- Why was the Anti-Discrimination Act 1991 introduced?
- Is the Anti-Discrimination Act 1991 the only law about discrimination?
- What is discrimination?
- What is indirect discrimination?
- What is an exemption?
- What stops someone making up an allegation of discrimination against me?
- What are the areas of activity under the Anti-Discrimination Act 1991?
- What is equal employment opportunity (EEO)?
- Do I have to disclose any medical conditions I have?
- Workers with degenerative medical conditions
- Obesity and employment
- Pre-employment - questions and answers
- Can an employer refuse to employ me because of my appearance?
- Can I make a complaint if I am discriminated against because of my weight?
Access to premises
- I am renovating my commercial premises. Do I need to provide accessible toilets?
- Can I make a complaint about lack of accessible toilets at a venue?
Lawful sexual activity
- What does lawful sexual activity mean?
- Can a motel or hotel refuse to rent a room to a lawful sex worker?
- Can a motel or hotel ask a potential customer if they are a sex worker?
- Can I ask women who are potential customers their occupation?
- Can I complain about television ads which I find offensive?
- Is smoking covered by the Anti-Discrimination Act?
Why was the Anti-Discrimination Act 1991 introduced?
The Act was assented to on 9 December 1991 and commenced (with the exception of sections relating to superannuation and insurance) on 30 June 1992. At that time only Queensland, the Northern Territory and Tasmania did not have state anti-discrimination legislation.
The preamble recognises the need to protect and preserve the principles of dignity and equality for everyone, and further expands on the need for legislation as follows:
5. The Parliament is satisfied that there is a need-
(a) to extend the Commonwealth legislation; and
(b) to apply anti-discrimination law consistently throughout the State; and
(c) to ensure that determinations of unlawful conduct are enforceable in the courts of law.
Is the Anti-Discrimination Act 1991 the only law about discrimination?
The Anti-Discrimination Act 1991 is not the only legislation about discrimination. There are also laws at a Commonwealth level, which is administered by the Australian Human Rights Commission. The current Commonwealth laws are:
- Racial Discrimination Act 1975
- Sex Discrimination Act 1984
- Australian Human Rights Commission Act 1986
- Disability Discrimination Act 1992
- Age Discrimination Act 2004
The Commonwealth laws, like our state laws, do not prohibit all types of discrimination. If both the Commonwealth and State laws apply, you can chose which law you want to lodge your complaint under. You cannot lodge your complaint under both Commonwealth and State law. If you start your complaint under the State law you cannot decide later to move your complaint under a Commonwealth law. But you can start under the Commonwealth law and later decide to move to State law.
What is discrimination?
In general terms, discrimination is any practice that makes distinctions between individuals or groups so as to disadvantage some and advantage others.
The Act establishes certain areas of life in which discrimination is prohibited, as well as detailing the attributes on the basis of which discrimination is prohibited. To decide whether discrimination has occurred involves a comparison between how the person has been treated, and how another person
or with a different attribute is treated.
What is indirect discrimination?
Indirect discrimination describes a situation or condition, which on its face appears to be neutral, or the same for everyone. In fact a person with an attribute (e.g. parental status, impairment, religion, race) is unable, or less able, to comply with that condition than someone without that attribute. The Act defines indirect discrimination at and provides examples.
What is an exemption?
Particular exemptions mean that not all forms of discrimination are against the law in all circumstances. The legislation allows exemptions when they are welfare or equal opportunity measures designed to benefit or promote equal opportunity for a member of a disadvantaged group or a person with particular needs, e.g. setting aside parking spaces for people with a disability. Other exemptions are possible, particularly in the case of genuine occupational requirements for employment and for workplace health and safety.
Sex and age discrimination are allowed in some situations, including employment. There are also exemptions involving workers with impairments. This means that even the law requires employers to make reasonable adjustments to accommodate the particular needs of people with disabilities, discrimination might be allowed if the circumstances of the impairment would impose an unjustifiable hardship on the employer.
What stops someone making up an allegation of discrimination against me?
The Commission is bound by the rules of natural justice to see that both sides to a complaint are given the opportunity to have their say. The person alleged to have discriminated is entitled to know and understand the allegations against them and is given a chance to respond to those allegations.
Under section 139, the Commissioner can reject a complaint if:
the commissioner is of the reasonable opinion that the complaint is- (a) frivolous or vexatious; or (b) misconceived or lacking in substance.
As the Commission does not decide whether or not discrimination occurred, the parties themselves decide whether or not to resolve the complaint and on what terms, guided by the conciliator. This means that a person against whom baseless allegations are made can choose not to resolve the complaint. If the complainant still wants to go ahead, they can choose to have the complaint referred to QCAT where they must call witnesses and produce evidence to prove their complaint.
What are the areas of activity under the Anti-Discrimination Act 1991 ?
The areas of activity where discrimination is prohibited are:
- work and work related areas, including voluntary work and applying for work;
- provision of goods or services;
- insurance and superannuation;
- accommodation, including residential and commercial premises;
- administration of State laws and programs;
- club membership and affairs;
- disposition of land
- between local government members.
What is equal employment opportunity (EEO)?
EEO exists when people are treated on their merits at every stage of the employment relationship. This includes: selection and recruitment, promotion and transfer, training and development opportunities, retrenchment and redundancy.
Do I have to disclose any medical conditions I have?
An employer, or prospective employer, has a right to know of any medical conditions which would impact on a worker's ability to perform the inherent requirements of the job for which they were hired.
Under the Workers' Compensation and Rehabilitation Act 2003 a prospective employer can:
- give a written request to a job applicant to disclose any pre-existing injury or medical condition that might be aggravated by performing the duties of the job;
- ask a job applicant to consent to the prospective employer obtaining a copy of the applicant's claims history from the Workers' Compensation Regulator.
A consequence of giving a false or misleading disclosure is that the applicant (or other claimant) will not be entitled to workers' compensation or to seek common law damages for any work-related event that aggravates the pre-existing injury or medical condition.
Workers with degenerative medical conditions
QUESTION: What is the situation with current employees who have degenerative conditions that render them unable to perform the genuine occupational requirements of their job and who we cannot reasonably accommodate? Can we terminate them?
ANSWER: The Anti-Discrimination Act 1991 makes it unlawful to discriminate against current employees because of their impairment, unless an excuse or exemption applies. An employer who does not facilitate the employee doing the job by accommodating their impairment by providing any special services or facilities required, may be discriminating against the employee, unless to do so would cause the employer an unjustifiable hardship. However, if an employee really cannot do the genuine occupational requirements of the job, namely the objectively essential parts of the job, even after a reasonable adjustment is made to try to accommodate them, then the employer may be able to terminate the employee without unlawfully discriminating.
We suggest that you could start by identifying the essential parts of the job and then asking the employee what they may need to be able to do these tasks well. Then see whether you can implement an arrangement, in co-operation with your employee, that will enable you to avoid having to recruit and train new staff, enable you to rely on the employee to get the job done and enable the employee to stay in their job if they wish. If not, is transferring the employee to another position an option? If not, termination may be appropriate.
Obesity and employment
QUESTION: Would it be considered discrimination to not employ due to obesity? Would it make any difference if (a) the person was required to work in a remote location where air evacuation is required and the person exceeds the weight limit or (b) the person was a truck driver and the seat capacity limit is 120kg and they are over this weight?
ANSWER: Obesity is not directly covered by the Anti-Discrimination Act 1991 . This means that generally it is not unlawful to discriminate against a potential or existing employee because of obesity. However, if the applicant or employee has an impairment, it may be unlawful to unreasonably discriminate against them on the basis of their impairment related obesity, if obesity is a characteristic of their impairment.
In relation to the specific examples, assuming that the obesity is a characteristic of the applicant's or employee's impairment and is therefore covered by anti-discrimination law, reasonable discrimination is excused. However, what is reasonable will depend on the exact circumstances of each specific situation.
For example (a) the circumstances may include whether there is some tolerance in the weight limit for evacuation which can be reasonably accommodated, what is the level of risk of injury or illness requiring evacuation of the employee, whether reasonable alternative evacuation methods are available, the cost and practicality of alternative any evacuation methods, and whether the need for evacuation can be limited if first aid or medical attention is reasonably available on site.
For example (b) the circumstances may include whether an alternative seat is available, whether an alternative vehicle with an increased capacity limit is available, whether these alternatives are within the reasonable financial capacity of the employer, and whether others may benefit from reasonable changes to the capacity limit.
Pre-employment – questions and answers
QUESTION: We're in the process of developing a new employment application form for our company. Can you give us some feedback please, and let us know if any of the questions breach the Act?
ANSWER: I've had a look at the form, and the questions asking for personal details, employment history and referees are fine. The questions in the `health' section, however could be problematic. There's a section of the Act which makes it unlawful to ask another person to supply information on which unlawful discrimination may be based. The example used in the Act says:
an employer would contravene the Act by asking applicants for all jobs whether they have any impairments, but may ask applicants for a job involving heavy lifting whether they have any physical condition that indicates they should not do that work.
A further section of the Act says that a defence can be argued to this, if the employer (in your case) proves, on the balance of probabilities, that the information is reasonably required for a purpose that didn't involve discrimination.
So, asking people to tick a list of possible medical conditions they might have, which are not necessary or not related to the essential requirements of the job may be in breach of the Act.
QUESTION: I want to advertise for a junior, but someone told me I could have a complaint made against me if I did. Is this right?
ANSWER: No, you can advertise for a junior. While discriminating against someone on the basis of their age is discriminatory, there are also exemptions. Exemptions simply mean that what is usually unlawful discrimination, is not unlawful in certain circumstances.
The Act contains an exemption (or a certain circumstance) regarding youth wages. It says :
a person may remunerate a worker who is under 21 years of age according to the worker's age.
QUESTION: I work for an employment agency, and one of our clients has asked us to find an attractive young woman to work with customers in their small business. Can we do this?
ANSWER: No. Seeking a person to fit this client's needs could result in a complaint of discrimination on the basis of age and/or sex.
When we discuss this issue with employment agencies, they often mention that they are concerned about losing the client if they don't supply the type of person the client wants. We suggest that they might turn this situation to their advantage by promoting their expertise in complying with the Act, and perhaps carving out a niche market in dealing with placements on the basis of compliance with discrimination legislation.
Physical appearance FAQs
Can an employer refuse to employ me because of my appearance?
Physical appearance is not a protected attribute in Queensland. This means an employer can refuse to employ you because you have tattoos, purple hair, piercings, dreadlocks, etc. or because of your standard of dress.
However, a requirement that an employee have a particular appearance might be discriminatory if it excludes people because of their age, race, sex, or other protected attribute – for example, an airline wanting only younger looking female cabin crew. The issue would be whether the requirement is genuinely necessary to perform the role.
It would also be unlawful to refuse to employ someone because of a physical feature associated with an impairment – for example, a scar or a disfiguring mark or disease.
Can I make a complaint if I am discriminated against because of my weight?
Physical appearance is not a protected attribute in Queensland. Discrimination because of weight might be unlawful if your weight is caused by a medical condition. If a requirement is imposed about weight and you can't comply because of your medical condition, it might be unlawful impairment discrimination. It will depend whether the requirement is reasonable, and if it is in the context of work, whether the requirement is a genuine occupational requirement. If your weight has caused the loss of a bodily function and you can’t comply with a requirement because of that loss, it too might be unlawful impairment discrimination. Again, it will depend whether the requirement is reasonable, and for work, whether it is a genuine occupational requirement.
Access to premises FAQs
I am renovating my commercial premises. Do I need to provide accessible toilets?
If the renovations require building approval then the Premises Standards under the Disability Discrimination Act 1992 apply. The Standards set out the various requirements for accessible toilets.If the Premises Standards do not apply and you do not provide accessible toilets, there might still be indirect discrimination of people with disabilities. It would depend whether it is reasonable not to provide accessible toilets in the circumstances.
Can I make a complaint about lack of accessible toilets at a venue?
I need to use accessible toilets and when I was at a venue recently there were no accessible toilets. Can I make a complaint to the Anti-Discrimination Commission Queensland?
Yes.It can be unlawful indirect discrimination of people with disabilities if it is unreasonable in the circumstances not to provide accessible toilets. However if it is a sport or social type club and you were there as a guest or member, the club might have the benefit of an exemption from complying with the Anti-Discrimination Act 1991 . The Premises Standards apply to commercial type buildings where a building approval was lodged after 1 May 2011. The Premises Standards contain various requirements for accessible toilets. If the Premises Standards apply and the building complies with the Premises Standards, it will not be unlawful discrimination for the matters covered by the Standards.
Bullying - questions and answers
QUESTION: I am an Indigenous man and I work in the manufacturing industry. My boss keeps making remarks about me getting the job because I'm
, and he tells my co-workers that if I'm not at work one day it's because I've gone
. He keeps a really close eye on my work, even though I don't think I need it, and he questions any time I have off, but he doesn't worry when the others have a
or spend their lunchtimes at the pub.
The other day when I was invited by my co-workers for a drink after work, he told them to order a taxi for me, because
you people can't hold your drink
. I've tried talking to him, and I even gave him a copy of
Face the Facts
but he just laughed and said he knew more than a bunch of
. I really like the work, but I feel as if I don't have a future here. Can you suggest anything?
ANSWER: From what you've mentioned, you'd be able to lodge a complaint of discrimination with this Commission on the basis of race, in the area of work. The incidents you talk about could also be seen as bullying behaviour, but because they're linked to, or based on your race, they fall within the scope of anti-discrimination legislation.
QUESTION: What can I do about a co-worker who seems to think everything he does is a joke? The other day, he
locked me in the toilet for a couple of hours, and only let me out when I started to panic. He's also left fake messages on my phone about members of my family being taken to hospital, he's swapped some of my medication around, a couple of times he's set up my chair so that it collapses when I sit
on it, and he's started to spread rumours about me.
ANSWER: This is bullying behaviour. It's inappropriate and unreasonable and repeated. It fits the definition of bullying which includes interfering with personal effects or equipment, and teasing. Bullying can also include yelling or abuse, constant criticism of work, isolating a person in the workplace, undermining work performance, overworking or underworking staff. While this person may not intend to hurt or undermine you, this could well be the result.
The behaviour doesn't seem to be based on any ground covered by anti-discrimination legislation, so you wouldn't be able to lodge a complaint with us, but if your employer has a policy on bullying, you could find out about their complaint process.
From the incidents you've described, there could also be an issue of workplace health and safety.
QUESTION: My boss runs this place as if it's his own little fiefdom. He yells at everyone, regardless of how far away they are at the time, he's abusive to staff even in front of clients, he has a 'nickname' for each staff member which some of us find embarrassing and he just loads us up with work when we haven't got a chance of meeting the deadline. Then when we don't, he abuses us even more. Can I lodge a complaint with you?
ANSWER:The short answer is no. This type of behaviour is classic bullying, bullying at it worst and at its most common. You wouldn't be able to lodge a complaint with this Commission, because the bullying isn't based on one of the grounds (such as age, sex, disability or religion) covered by the Act. If your employer has a policy on bullying, you might want to lodge a complaint with the company. You could also call the Queensland Working Women's Service for more information about what you can do. Other organisations which might be able to assist are the Workplace Health and Safety Division of the Department of Employment, Training and Industrial Relations, or the Beyond Bullying Association.
Lawful sexual activity FAQs
What does lawful sexual activity mean?
In the context of the Queensland Anti-Discrimination Act 1991 , lawful sexual activity means a person's occupation as a sex worker. (In Queensland, sex workers can work legally either in a licensed brothel or as a sole operator.) It does not include performing the work of a sex worker. It is unlawful to discriminate against a person (in the areas of activity under the Act) because the person is a sex worker, except in certain circumstances involving work with children. For example, it would be unlawful for a school to refuse to enrol a person's child because the person is a lawful sex worker.
Can a motel or hotel refuse to rent a room to a lawful sex worker?
It is lawful for a motel or hotel to refuse to provide accommodation if the sex worker intends to use the room for sex work.
If the room is not to be used in connection with sex work, it is unlawful to refuse to rent the room to a person because of the person's occupation as a sex worker.
Can a motel or hotel ask a potential customer if they are a sex worker?
It is unlawful for a person to ask another person to supply information on which unlawful discrimination might be based.
It is only lawful for accommodation providers to discriminate against sex workers if they reasonably believe the person is using or intends to use the room in connection with their sex work. If an accommodation provider suspects a potential customer might use the room for sex work, they could ask whether the person intends to use the room for work. They could then ask what type of work the person intends to do, and if it is sex work, they can lawfully refuse to provide the room.
Can I ask women who are potential customers their occupation?
If only women are asked for their occupation, this could be unlawful discrimination on the basis of the person's sex, in that women are being treated less favourably to men.
Can I complain about television ads which I find offensive?
The discriminatory advertising provisions in the legislation refer to ads where someone shows an intention to break anti-discrimination laws, for example, where an employer indicates that only female applicants need apply for a job where a person's sex is irrelevant to their ability to do the work.
In general sexist television advertising is not covered by the Act and complaints should be referred to the relevant broadcasting authority. Television ads which may incite racial or religious hatred may be covered by the Act.
Is smoking covered by the Anti-Discrimination Act?
No. Smoking is not a protected attribute, and it is not an
under the Act.
Although smokers might be addicted to nicotine, it is possible to deal with the addiction by using patches rather than smoking. It is acceptable to impose reasonable smoking restrictions while at work or in rented premises without offending the Anti-Discrimination Act .