Balancing the Act: ADCQ newsletter -
Lodging a complaint - how high is the bar?
This article by Neroli Holmes (Anti-Discrimination Commission Qld Deputy Commissioner) and Kate McCormack (Anti-Discrimination Commission Qld Manager, Community Relations) first appeared in Balancing the Act, Issue 19, May 2004, pages 4 to 5.
The short answer to the question in the title, is 'it depends'.
Since the Commission began work in December 1996, thousands of complaints have been accepted under the Act. Hundreds have also been rejected for a range of reasons, including lack of coverage, not meeting threshold requirements or referral to other, more appropriate,jurisdictions.
So,how does the Commission assess complaints, and make the decision about whether to accept them or not?
Depending on the type of complaint, different sections of the Act are relevant. As a result, it may be that it's easier for the Commission to accept a complaint of sexual harassment than of discrimination, and easier to accept a complaint of discrimination than of vilification.
So, how does it work?
Sexual harassment complaints
The Act prohibits sexual harassment, and states quite simply 'A person must not sexually harass another person'. This is the most straightforward of complaints, where a person needs to show that the behaviour complained of is of an unwelcome sexual nature, and that this behaviour was either intentional, or behaviour that a reasonable person would see is unwelcome. Once these two elements have been established, we accept the complaint. There are no exemptions which can be raised and argued in defence, the behaviour doesn't need to happen at work or in any of the other areas covered by the Act, and there are usually no legal arguments. In most cases,it's a factual dispute - did the behaviour happen or not?
Of course, we often receive complaints which seem to be borderline in terms of whether a reasonable person would see the behaviour as unwelcome and of a sexual nature. In the example of a woman having the strap of her dress straightened by another person while she was breastfeeding, we made a decision that the act wasn't of a sexual nature.
Sometimes too, the same sort of behaviour can be welcome when it's done by one person, and unwelcome when done by another.In the 'dress strap' case mentioned previously, it may have been OK in one case,if done by a friend for example, and not OK if done by someone else, such as a person who's engaged in unwelcome touching behaviour before.
Difficulties in assessment also arise in cases where, for example,two people are involved in a consensual relationship, which finishes unhappily for one person. That person might want to try to resurrect the relationship by phone calls and invitations. At what point does the previously consensual behaviour become unwelcome behaviour of a sexual nature?
The issue of intent often also raises issues. In a Western Australian case, workers had displayed hard core pornography in their lunchroom. The women who cleaned the lunchroom were offended by this and lodged a complaint. It's quite easy in this case to assume there was no intent to offend anyone, but also understandable that a reasonable person would have anticipated the possibility that the cleaners would have been offended by it.
Complaints of discrimination need to meet more requirements than those of sexual harassment. The behaviour, for example, needs to happen in one of the areas under the Act. The person complaining also needs some objective evidence other than strong intuition or feelings. For example, we wouldn't take a complaint from a person who told us he/she didn't get a job because they're over 40, and the unemployment rate for this group is high. The objective evidence doesn't need to be of a legal standard, but we do need details and information to support the allegation of a breach of the Act.
The behaviour also needs to be on the basis of one of the grounds covered under the Act, such as race, sex, age, impairment etc. So, the complaint needs to show discrimination on the basis of one of the grounds, and in one of the areas covered by the Act.
It also needs to show that the treatment was unfair or less favourable compared to the treatment someone without the attribute would have received. For example, we would look at a complaint which alleged the following: a Aboriginal man rang about a job, was told he looked pretty good for it, and was asked to come in for an interview. When he arrived, the boss said he'd never employed an Aboriginal person in the past, and wasn't going to start now. It's clear that the man's race (Aboriginality) compared with another applicant's race resulted in him being treated unfairly i.e. in not getting the job.
Another example shows, however, there is no comparator, and so no complaint possible under our legislation. In a workplace, a boss bullies everyone, men and women, young and old, long-term employees and new starters. A woman lodges a complaint saying she's been discriminated against on the basis of her sex. Because the boss bullies everyone,she can't show she's been treated less favourably than the men in the workplace, because she's a woman. While the bullying behaviour is clearly cause for complaint, it can't be accepted in our jurisdiction, because the behaviour wasn't on the basis of her sex. If only women were bullied, we would certainly look at a complaint.
A further example of lack of a comparator could be the situation where the number of disabled parking spots in a carpark is reduced from 6 to 4. A person with a disability lodges a complaint of discrimination, saying they now have less chance of getting a spot, but in fact, they're not being treated less favourably than a person without a disability, in terms of being able to park. While it might seem unfair, it's not a case for this Commission.
So, the behaviour needs an attribute and an area covered by the Act, and also needs to show less favourable treatment.
In complaints of discrimination, the issue of exemptions may also be relevant.The Act contains a range of exemptions, which mean that behaviour which would usually be unlawful discrimination, is not unlawful in particular circumstances. In cases of sexual harassment, on the other hand, there are no exemptions. The behaviour either did, or didn't, happen.
An example of an exemption might be that a young person (say 16 years old) says they've suffered discrimination on the basis of their age, because they've been told they can't drive the work truck to make deliveries. The appropriate exemption in this case would be the genuine occupational requirement, where the employer says that to do the job of deliveries, the person must hold a valid and current driver's license. While this is a straightforward example, cases can become quite complex, and that's probably the subject of a different article.
Having a complaint of vilification accepted is generally more difficult than those of either discrimination or sexual harassment.
A complainant needs to show or deal with 4 elements. The behaviour must be a public act, it must incite people, and must incite them to hatred (or serious contempt or severe ridicule), and the incitement to hatred must be on the basis of one of the grounds covered by the Act (race, religion, sexuality or gender identity). It's clear the bar is set quite high here.
The intention of this part of the legislation was to balance the right of free speech with the responsibility not to vilify, so the words in the Act are quite strong, indicating that only serious vilification is covered. The federal legislation, on the other hand, contains much milder language, referring to public behaviour which is likely, in all the circumstances, to offend, insult, humiliate or intimidate. There's no reference to incitement, and the words are more akin to those used in the sexual harassment sections of our Act.
Even if a person is able to show the act was public, and that it incited people to hatred on the basis of their race (or religion, sexuality or gender identity), the Act contains a range of defences, including good faith. It was this defence which was crucial in the Deen v Lamb  QADT 20 (8 November 2001) case in Queensland. The complainant showed that Muslims had been vilified, but the successful argument of the good faith defence, meant that the behaviour, while vilifying to Muslims, wasn't unlawful.
In summary then, if we were to rank the threshold levels of complaint acceptance by the Commission, a sexual harassment complaint would have a higher rate of acceptance than one of discrimination, and a complaint of vilification would have the lowest rate of acceptance, because of the legislative requirements in each case.