Other prohibited conduct

Contributed by The Victorian Equal Opportunity and Human Rights Commission and current to 24 March 2023

The Equal Opportunity Act also makes unlawful a number of actions related to discrimination. Other prohibited conduct includes victimising someone who raises a discrimination concern, discriminatory advertising and discriminatory request for information. The Equal Opportunity Act also makes authorising or assisting discrimination unlawful. These topics are discussed below.

Victimisation

Section 103 of the Equal Opportunity Act prohibits victimisation. Victimisation is defined in section 104 of the Equal Opportunity Act as follows:

Deputy President McKenzie in the matter of Tan v McArdle [2010] VCAT 248 noted to establish victimisation under section 104, a complainant must establish the following:

• that the alleged victimiser has subjected the complainant to conduct which constitutes a detriment
• that the conduct which constitutes the detriment must be directed at and affect the complainant
• the alleged victimiser must engage in the conduct complained of for one or more of the proscribed reasons set out in section 104 [26]–[28].

Unlike discrimination and sexual harassment, the prohibition on victimisation is not tied to any particular area of public life or relationship.

Detriment

Detriment is defined in section 4 of the Equal Opportunity Act to include 'humiliation and denigration'. It otherwise is to be given its ordinary meaning. Detriment is defined in the Macquarie Dictionary to mean 'loss, damage or injury'.

Taken together, and given the beneficial nature of the Equal Opportunity Act, it is likely that the term detriment is to be interpreted in a broad sense. In Kistler v R E Laing Training and Robert Laing (2000) EOC 93–064 VCAT stated:

The following have been held to constitute a 'detriment' in the context of a victimisation claim by VCAT:

• Following an employee’s complaint about sexual harassment, directing the employee to take annual leave and proposing to transfer her to another site, which had the effect of requiring her to work in a role that ‘although remunerated at the same pay rate, was less satisfying’. See Kumari v Bervar Pty Ltd t/as Della Rosa Fresh Foods [2019] VCAT 1654 [89]-[98].
• The delay and eventual withdrawal of services. See Fratas v Drake International Limited (2000) EOC 93-038
• Subjecting an employee who had made a complaint of sexual harassment to the following:
  • shaking a packet of Ratsak (rat poison) in her face and saying words to the effect of that he would 'get a rat' before putting it away in the cupboard
  • requiring her to be accompanied to an external training session when this had not ever been required before
  • issuing a direction that she not be in the general office area unless absolutely necessary
  • omitting the employee from a list of professional development activities as was usual for other staff
  • avoiding and/or refusing to process a WorkCover claim in a timely manner.
    See Gray v State of Victoria (1999) EOC 92–996
• banning a person from membership of an organisation. See Parr v Steamrail Victoria [2012] VCAT 678.

In Besley v National Aikido Association Inc [2005] VCAT 245 President McKenzie noted an alleged flaw in an investigation process into allegations of discrimination or harassment is unlikely to amount to victimisation or a detriment:

Similarly, in Lazos v Australian Workers Union [1999] VCAT 635 VCAT stated:

Substantial reason

To prove a claim of victimisation, the complainant must demonstrate that one of the factors listed in sections 104(1)(a)–(h) was a substantial reason for the alleged victimisation. It does not need to be the only or even the dominant reason, provided it is a substantial reason. For more information, refer to the discussion of Stern v Depilation & Skincare Pty Ltd [2009] VCAT 2725 in the section Treatment 'because of' a protected attribute. That case makes clear that it must be 'a reason of substance for that conduct' [8]. The complainant must establish a causal nexus between the alleged detriment suffered and the action taken under section 104(1).

In G v Victoria Legal Aid (2000) EOC 93-060, in finding that a claim of victimisation was not made out under the 1995 Act, VCAT stated:

A similar conclusion was reached in the decision of Parr v Steamrail Victoria [2012] VCAT 678. Mr Parr complained he had been victimised because Steamrail Victoria banned him from its organisation indefinitely. Mr Parr alleged this was because he had gone to the police with three teenage boys who alleged to the police that a member of Steamrail Victoria had sexually assaulted them. After further discussions between Mr Parr and the new Chairman of Steamrail Victoria, the question of Mr Parr's membership was put to a general vote. Members voted against Mr Parr's membership. Mr Parr claimed he had been subjected to a detriment because, through him, the teenagers had made a complaint of sexual harassment. Steamrail submitted this had not been the reason for Mr Parr's treatment. There was no direct evidence of the reason why Mr Parr had been banned. The new Chairman of Steamrail Victoria said members told him that they voted against Mr Parr's membership because 'of Mr Parr's abusive and aggressive behaviour toward them … (and) that many members told him that, if Mr Parr's membership were reinstated, they would leave the Steamrail organisation' [37].

Mr Parr's claim failed. Senior Member McKenzie found the claim of victimisation was not proven and stated:

In Collins v Smith [2015] VCAT 1029 VCAT found no evidence of victimisation. The complainant was compelled to offer her resignation due to ongoing sexual harassment. VCAT was not satisfied, however, that the respondent's vindictive behaviour of cancelling shifts, threatening to terminate her employment or refusing to write a reference was due to her complaining. There were other plausible explanations for this conduct. The respondent had received an ultimatum from his wife (who was a business partner) that he not work with the complainant and evidence of an intention to restructure the business [395]–[396].

In A'Vard v Deakin University [2015] VCAT 1245 a student alleged victimisation by a university. The student could not prove a connection between her complaint of sexual harassment and her exclusion from her course, which the university linked to her alleged poor results. VCAT observed:

Whether there is the necessary causal nexus is a factual issue for VCAT to determine on the basis of the evidence. See, for example, Grah v RMIT [2011] VCAT 2184. VCAT held the detriment claimed was ultimately the result of the complainant's own conduct, not the claimed attribute necessary to prove a claim of victimisation.

Knowledge and other matters

A related question is the extent to which the respondent has knowledge of the action under section 104(1), upon which the victimisation claim is based. That is, if a complainant claims they have been victimised because of an earlier complaint made under the Equal Opportunity Act, to what extent is it necessary for the complainant to provide evidence the respondent had knowledge of the earlier complaint? This issue was addressed in the case of Gabriel v Council of Box Hill Institute of TAFE [2002] VCAT 302. VCAT said:

See, for example, State of Victoria v McKenna [1999] VSC 310.

Importantly, it is possible to prove a claim of victimisation even where the underlying claim of discrimination or harassment is ultimately not successful. In Kistler v RE Laing Training & Robert Laing (2000) EOC 93-064 VCAT found the claim made by Ms Kistler of sexual harassment was not proven and did not accept her evidence. VCAT found, however, the respondent engaged in victimisation within the meaning of the Equal Opportunity Act, substantially because Ms Kistler had made a complaint. The alleged victimisation took the form of intimidating comments and conduct including threats.

Although VCAT did not accept the evidence given by the complainant in relation to the allegations of sexual harassment, it concluded the complaint was made in good faith. A finding that the complaint had not been made in good faith would have precluded a finding of victimisation, under section 104(1)(g) of the Equal Opportunity Act. See also Zareski v Hannanprint [2011] NSWADT 283.

Duty to eliminate victimisation

Section 15(2) of the Equal Opportunity Act imposes a requirement on duty holders to take reasonable and proportionate measures to eliminate victimisation as far as possible.

Authorising and assisting discrimination and sexual harassment

Section 105 and section 106 of the Equal Opportunity Act together regulate the extent to which individuals and organisations can be held liable for secondary liability. This is sometimes referred to as 'authorising or assisting'.

Section 105 states that 'a person must not request, instruct, induce, encourage, authorise or assist another person to contravene a provision of Part 4 or 6 or this Part'. It creates liability for those who do not discriminate personally but who take steps to authorise, assist or encourage discrimination.

This section also prohibits a person from requesting, instructing, inducing, encouraging, authorising or assisting another to engage in unlawful discrimination or sexual harassment in breach of the Equal Opportunity Act. This means a person must not ask, instruct or encourage anyone else to take actions that may unlawfully discriminate or sexually harass. A person who has authorised and assisted unlawful acts can be liable even if they did not personally engage in the conduct.

Section 106 states:

This means a person can complain about either an 'authoriser' of discrimination or the person whose conduct discriminates, or both of them.

Part 4 of the Equal Opportunity Act deals with discrimination and Part 6 with sexual harassment. 'This Part' refers to Part 7 which includes the prohibition on victimisation.

A person can bring a dispute to the Commission in respect of an alleged breach of section 105 as stand-alone contravention of the Equal Opportunity Act. However, it is first necessary to prove discrimination or sexual harassment (a contravention of Part 4 or Part 6) has occurred.

In Weber v Deakin University [2014] VCAT 1440 VCAT rejected the complainant's contention that section 105 does not require a contravention to be proven as it is based on acts by a third party. VCAT found 'a contravention of the Equal Opportunity Act must be established before there is any basis for liability, where a third person assists that contravention'. VCAT found the complainant failed to establish that there was a breach and dismissed his claim [231]–[234].

This statement contrasts with comments in Besley v National Aikido Association Inc [2005] VCAT 245 where VCAT said of an equivalent provision, 'Of course it would cover encouraging, assisting, et cetera, a person to breach the Act even if no breach occurs' [59]. This case followed Brooks v State of Victoria [1997] VADT 13where VCAT said:

Timing of conduct

As noted in Besley v National Aikido Association Inc [2005] VCAT 245 above, where a claim is brought under section 106, it must be shown that the authorising or assisting conduct occurred prior to any actual unlawful discrimination or sexual harassment. However, organisations will need to be careful about the implications of this. Failure to properly investigate claims, for example, may be found to be authorising and assisting where there is ongoing conduct, and in some circumstances it could amount to discrimination.

Degree of knowledge required

The level of knowledge a person must have before they can be held liable for authorising, assisting or encouraging another to breach the Equal Opportunity Act is a relevant consideration.

In Kogoi v East Bentleigh Child Care Centre [1996] VADT 27 VCAT considered a provision similar to section 106, which existed in section 35 of the Equal Opportunity Act 1984 (Vic):

In Kogoi v East Bentleigh Child Care Centre [1996] VADT 27, considering the construction to be applied to this clause, VCAT relevantly said:

Section 105 and section 106 are worded in slightly different terms to the provision under the Equal Opportunity Act 1984 (Vic). Nevertheless, the Commission considers that the comments relating to the knowledge required remain applicable.

In Roulston v Temp Team Pty Ltd [2001] VCAT 2036, for example, Mr Roulston was assigned to work for Orange by Temp Team, an employment agency. At the request of Orange, Temp Team removed Mr Roulston from that assignment. Mr Roulston submitted Temp Team had authorised and assisted Orange to discriminate against him, alleging the removal was because of his psychiatric impairment. Temp Team was told by Orange that the request for removal was made on performance-based grounds. VCAT found:

This can be compared to the situation in Elliott v Nanda & Commonwealth [2001] FCA 418. The Federal Court held the Commonwealth Employment Service (CES), as the employment agency, had sufficient knowledge to be liable for having authorised or assisted the sexual harassment alleged by Ms Elliott under the Sex Discrimination Act 1984 (Cth). The Court found the CES had been informed several young women working with Dr Nanda had complained about having been sexually harassed by him in a way that would constitute sex discrimination. While none of the previous complaints were investigated, the CES did not seek to acquire sufficient knowledge to determine whether these complaints were of any substance. The CES was held liable for having authorised and assisted the acts of sexual harassment. That the CES caseworker who facilitated Ms Elliott's employment did not know about the history of complaints against Dr Nanda did not prevent the finding that the CES had authorised or assisted the discrimination. The Federal Court clarified a person can permit another to discriminate if:

This suggests to prove a claim under what is now section 106, a complainant needs to show either:

• the secondary person knew that the proposed conduct was because of a prohibited reason
• there was a reasonable basis for a belief or suspicion to that effect

or

• there was a reasonable basis upon which that person ought to have made enquiries as to the basis for the proposed conduct.

The case of Tomasevic v Strauss [2002] VCAT 395 illustrates this point. Mr Tomasevic argued Dr Strauss breached section 98 of the 1995 Act. The complainant alleged Dr Strauss authorised or assisted the Department of Education to discriminate against him. Mr Tomasevic argued the department, his employer, used Dr Strauss's report as the basis of its decision to continue to suspend him from teaching duties. In dealing with this part of the claim, VCAT said:

Inaction and secondary liability

Cases on this issue in different jurisdictions need to be considered with care. Variations in the wording of provisions may have a significant impact on how the provision operates.

Section 105 and section 106 of the Equal Opportunity Act use the words 'request, instruct, induce, encourage, authorise or assist'.

Legislation in other jurisdictions sometimes uses the word 'permit' in equivalent provisions. Section 160 of the Equal Opportunity Act 1984 (WA) (WA Act), for example,states:

In Horne v Press Clough Joint Venture (1994) EOC 92-59 the Western Australian Equal Opportunity Tribunal found the union failed to take any action to have sexually oriented posters removed from the workplace, failed to take any action to prevent the sexual harassment and failed to act in any real way on the complainant's objections. On that basis, the Tribunal held the union had 'aided and permitted' discrimination.

The use of the word 'permit' in the WA Act distinguishes that provision from the provision in the Equal Opportunity Act. It may provide a stronger basis from which to argue that the WA Act covers inaction as well as action on the part of the secondary offender.

However, some cases decided under the predecessor to section 105 and section 106 of the Equal Opportunity Act have also suggested inaction in certain circumstances could give rise to secondary liability.

In Lazos Leslie v Australian Workers Union [1999] VCAT 635 VCAT said it would only be in unusual circumstances that inaction could fall within the prohibition in the predecessor section 105 or section 106, such as where there was a reasonable expectation that a person would take some action. Similar views were expressed in Kafantaris v City of Yarra [2005] VCAT 2591, where it was observed 'it may well be that s 98 contemplates omission as well as commission, at least where it can be said that there was a duty or legitimate expectation that the relevant person would act' [23]. Any person failing to act on complaints of ongoing sexual harassment of an employee by a supervisor could be an example of this, because the person could be 'authorising' the behaviour.

Similarly, in Mitchell v Clayton Utz [No 3] [2010] NSWADT 100 (Mitchell v Clayton Utz) the NSW Anti-Discrimination Tribunal considered whether liability arose under section 52 of the Anti-Discrimination Act 1977 (NSW) which says '[i]t is unlawful for a person to cause, instruct, induce, aid or permit another person to do an act that is unlawful by reason of a provision of this Act'. That section, unlike the Victorian section, also contains the word 'permit'. The Tribunal said:

The issue was whether two individuals 'permitted' others to sexually harass Mr Mitchell. This case involved an application by Mr Mitchell to amend his complaint to include the aiding and abetting allegations. The Tribunal decided against Mr Mitchell and refused to allow the amendment sought. In the course of its decision, however, it commented on the requirements necessary to prove a claim of secondary liability under section 52. In particular, the Tribunal noted:

In Walgama v Toyota Motor Corporation [2007] VCAT 1318 VCAT rejected this view and found section 98 of the 1995 Act did not permit a claim based on inaction. VCAT pointed to the absence of the word 'permit' in section 98 (continued in the current provisions) as the basis for this view. VCAT found:

In Gembrook Views Estate Pty Ltd v Cardinia SC (Red Dot) [2017] VCAT 604, VCAT found that the particular words that were relied on in that case, ‘request, instruct, induce and encourage’:

In Oliver v Bassari (Human Rights) [2022] VCAT 329, VCAT endorsed the finding in Gembrook Views Estate in accepting that mere inaction is unlikely to amount to a contravention of section 105 because all of the terms in the section require ‘some positive action’ [82]. However, VCAT considered that it is possible that:

VCAT clarified that the ‘act of authorising’, being to ‘formally sanction’ or ‘empower’ conduct’ requires at least that the perpetrator be made aware, either expressly or implied, that their conduct is authorised [83]. For that reason, VCAT concluded that:

In that case, VCAT was not satisfied that the manager’s inaction authorised sexual harassment because, although the manager knew about the sexual harassment, the perpetrator was not aware the manager knew until the applicant resigned [89].

Discriminatory advertising

Section 182 of the Equal Opportunity Act makes it a criminal offence to publish, display or authorise the publication or display of an advertisement that could be reasonably understood as indicating that any person intends to engage in any conduct that would amount to discrimination, sexual harassment or victimisation.(3) An employer, recruiter and publisher, for example, may be criminally liable for posting a discriminatory job advertisement seeking people of a particular race, age or sex for a position, without being able to rely on an exception or exemption.

Under section 183 it is a defence to a charge of discriminatory advertising that a person took reasonable precautions and exercised due diligence to prevent the publication and display.

Proceedings may be brought by the Commission, a member of the police force, or any other authorised person as detailed in section 180.

In Han v SAL National Pty Ltd [2021] VCAT 395, VCAT confirmed that it does not have jurisdiction to make orders about the offence of discriminatory advertising [24].

Discriminatory requests for information

Section 107 of the Equal Opportunity Act states:

Section 108 provides an exception to these requests if the information requested is reasonably required for a purpose that does not involve prohibited discrimination. The person who requests or requires another to supply information has the burden of proving the information is required for the purpose that does not involve discrimination. They must also not disclose or communicate this information to another person unless it is necessary to do so, and must destroy or identify the information when it is no longer required.

Section 107 and section 108 are not limited to any particular area of public life covered by the Equal Opportunity Act, such as work, education, accommodation. However, case law has shown the particular application of these sections in the employment context. Employers asking for medical information need to be mindful of their duty under section 107 of the Equal Opportunity Act to not request or require another person to supply information that could be used by the first person to form the basis of discrimination against the other person.

In Harrison v Department of Education and Training [2017] VCAT 1128 the complainant alleged her employer directly discriminated against her when it requested a report from the complainant's doctor about her conditions. She argued this was unfavourable treatment because of her disability and also in breach of section 107. Senior Member Burdon-Smith stated to succeed in this latter claim, the complainant must establish that the respondent requested medical reports from her doctor and this was unfavourable to her, and that the requests were made for the purpose of discriminating against her [197]. In addition the complainant 'bears the burden of proving that the information sought could have been used to treat her unfavourably or impose unreasonable requirements on her' [207].

VCAT found the report was sought by the respondent when the complainant was seeking to return to work after an illness, and that the purpose was 'to have a full and comprehensive report in order to properly understand the nature of the applicant's [complainant's] current medical concerns and how to properly accommodate them' [211]. The complainant did not satisfy VCAT that the medical report was to be used to discriminate against the complainant directly or indirectly.

Notes

1 : Compare this with the position in NSW where the relevant provision is in slight different terms. In the decision of the New South Wales Anti-Discrimination Tribunal in Mitchell v Clayton Utz [No 3] [2010] NSWADT 100 [24] it was held 'the first element in establishing what is known as 'contributory' liability under s 52 is to establish that there was an unlawful contravention of the Act. It is this contravention which triggers the liability of third parties'. See also Dixon v RNJ Sicame Pty Ltd; Sims v RNJ Sicame [2002] NSWADT 154 [42] and Cooper v Human Rights & Equal Opportunity Commission [1999] FCA 180 [27].

2 : See also Neil Rees, Katherine Lindsay and Simon Rice, Australian Anti-Discrimination Law (Federation Press, 2008) 10.8.32–10.8.40.

3 : The penalty is 60 units for a person and 300 penalty units for a body corporate, detailed in section 184 of the Equal Opportunity Act.

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