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EEO stands for Equal Employment Opportunity, and covers discrimination and anti-discrimination, and associated topics such as harassment.
EEO legislation
Most companies are subject to both federal and State EEO legislation. Each jurisdiction has a separately administered tribunal and court system overseeing these laws.
It is important for managers and supervisors to have some understanding of the organisation's obligations under the law in order to ensure compliance.
Federal and State EEO laws provide that it is unlawful to discriminate against a person on certain prohibited grounds of discrimination. Discrimination is unlawful in the area of employment, which includes recruitment during employment and termination of employment.
An employee or job applicant who believes they have been discriminated against in employment can lodge a complaint with the relevant federal State or Territory equal opportunity authority. If the complaint is found to be justified, the employee may be entitled to various remedies, which may include damages.
Federal legislation covers all Australian employees and State and Territory legislation covers employees in the relevant State/Territory. Employees can elect to bring a claim under either Federal or State laws. However, some grounds of discrimination are only unlawful at a State level.
Employers with 100 or more employees are subject to extra legal requirements in relation to promoting and reporting on their practices that support equal opportunity for women in the workplace.
How is the employer accountable under EEO law?
The law says that the employer, whether an individual or company, will be liable for discrimination or harassment that the employer causes. This is called primary liability. Primary liability will be incurred either through the actions of the individual employer, or in the case of a company, through the actions of its chief executive officer or managers. An employer can also be liable where he or she, or in the case of a company, the managers, ignore discrimination or harassment that is happening in the workplace.
The employer will also be liable for the discrimination or harassment caused by its employees. This is called vicarious liability. If the employer can show that it took reasonable steps to prevent the discrimination or harassment occurring, then the employer may not be liable
From an employment perspective, EEO deals with:
- Unlawful discrimination
- Affirmative action
- Termination of employment
- Workplace harassment
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Victimisation
What are the grounds of unlawful discrimination?
The grounds vary between States and Territories. The following grounds summarise the grounds across Australia:
- Race (including colour, nationality, descent, ethnic, ethno-religious or national origin)
- Religious belief or activity
- Sex
- Marital status
- Pregnancy (including potential pregnancy)
- Homosexuality, sexual orientation, sexuality, lawful sexual activity
- Carers’ responsibilities, family responsibilities, parental status
- Disability, including physical, mental and intellectual disability, medical record
- Breastfeeding
- Age
- Physical features (VIC only)
- Profession, trade, occupation or calling (ACT only)
- Industrial/trade union activity
- Political belief or activity
- Transexuality, transgender and gender identity
- Criminal record
- HIV/AIDS
- Medical record
- Spent convictions
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Defence service
What types of employment situations are covered?
The legislation also sets out the various employment situations where unlawful discrimination may occur, including:
- job application forms
- job descriptions and person specifications
- job advertisements
- access to and conduct of interviews
- job offers – both access to and terms/conditions
- awards, enterprise agreements and individual agreements
- employment terms and conditions
- promotion and transfer opportunities
- access to and conduct of training and development
- employment benefits
- dismissal
- redundancy
- harassment
- victimisation
- discrimination by recruitment agencies
- discrimination against commission agents
- discrimination against contract workers.
The legislation also contains some exemptions for certain types of conduct, such as a follower of a particular religion holding office in that religion.
How does discrimination occur?
Discrimination occurs if an employee is treated less favourably than other employees in the same or similar circumstances on the basis of a prohibited ground of discrimination (sex, age, race, etc). For example, you do not offer training to any employee over 50 years of age (less favourable treatment on the ground of age), as you assume they will retire soon.
The ground of discrimination does not have to be the sole or dominant reason for the less favourable treatment of the employee - it only has to be a contributing factor.
Indirect discrimination is also unlawful. Indirect discrimination occurs where there is a requirement or policy that is the same for all - on its face it appears neutral. However, it has a disproportionate impact on certain groups (such as people of a certain sex or age) and that requirement or policy is not reasonable in the circumstances. For example, the police force used to have a requirement that all police officers be at least 180 cm tall. However, this requirement was harder for certain groups to meet (ie. women and people from an Asian background) as, statistically, they are shorter in stature. If there is no good reason for that requirement (ie. it does not relate to the requirements of the job) it will be indirect discrimination. This requirement has now been discontinued.
An employer will be vicariously liable for unlawful discrimination or harassment engaged in by its employees, for example if a manager sexually harasses a co-worker. However, if the employer can show that it took reasonable steps to prevent the discrimination or harassment occurring, then the employer will have a defence to vicarious liability.
What you need to do
The first step towards demonstrating commitment to a discrimination and harassment-free workplace is to issue a policy statement. This statement should:
- explain what discrimination and harassment are and state clearly that this type of behaviour will not be tolerated in the workplace;
- list the relevant grounds of discrimination;
- explain the consequences of breaching the policy;
- indicate who is responsible for implementing EEO within the organisation;
- indicate what employees should do if they have a complaint;
- be signed by the CEO or contain some other indication of support from senior management.
The statement should be widely distributed and backed by training in EEO awareness for all employees and managers.
It should also be backed up by a formal grievance handling procedure for dealing with complaints of discrimination or harassment. The procedure should provide both informal and formal complaint procedures, including prompt investigation of complaints where appropriate.
Employees should also review their employment policies, practices and documents (eg job application forms, promotion policy, working hours) to ensure they do not discriminate either directly or indirectly.
What if someone complains of discrimination?
If an employee or job applicant lodges an external complaint of discrimination (ie. with the relevant EEO authority), the Government agency that received the complaint will usually contact you to attempt to resolve the complaint by conciliation between the parties.
If conciliation is unsuccessful or not possible, the complainant can elect to refer the complaint to an EEO tribunal for legal resolution. If the tribunal upholds the complaint, it may award remedies against the employer.
Remedies include reversing the act of discrimination, damages, financial compensation, voiding or amending an employment contract and issuing an apology.
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