Last Updated 14 June 2017
Direct discrimination is discrimination that occurs when a person with an attribute such as race, religion or age is treated, or proposed to be treated, less favourably than a person without that attribute in the same or not materially different circumstances (s 10(1) Anti-discrimination Act 1991 (Qld) (Anti-discrimination Act)).
Other Queensland legislation support this objective such as the Guide, Hearing and Assistance Dogs Act 2009 (Qld), which ensures that every person who relies on a guide, hearing or assistance dog has the same access rights as others to public places and public passenger vehicles. This includes cafes, restaurants, pubs, clubs, sports venues, taxis and buses.
The Anti-discrimination Act defines indirect discrimination as imposing a term with which a person with an attribute cannot comply, with which a higher proportion of people without the attribute comply or are able to comply and which is not reasonable (s 11(1) Anti-discrimination Act).
The concept of indirect discrimination has caused significant difficulties in anti-discrimination legislation around Australia. Even the judges of the High Court have found it difficult to agree exactly how indirect discrimination is to be identified. An example would be: an employer decides to only employ people who are over 190 cm tall, although height is not pertinent to effective performance of the work. This disadvantages women and people of genetically shorter stature. The discrimination is indirect and unlawful because the height requirement is unreasonable.
Substantial reason test
When a person is discriminated against for two or more reasons, the Anti-discrimination Act requires that the discriminatory reason must be a ‘substantial reason’ for the treatment before action can be taken. So long as a discriminatory reason was a substantial reason for an act, it is not necessary to establish that the discriminatory reason was the only reason for the act.
In contrast, the Commonwealth Acts all require that the discriminatory reason need only be one of the reasons for less favourable treatment, whether or not it is a substantial or dominant reason for the less favourable treatment. In practice, many people accused of discrimination claim that the alleged discriminatory reason for the unfavourable treatment is not substantial. They may claim instead that they acted for non-discriminatory reasons such as in employment situations where employers allege poor work standards or the worker’s inability to get along with fellow workers. It is critical to obtain either direct evidence of the reason for the discrimination, or evidence that is so strong that an inference can be drawn that the discriminatory reason was the actual reason that the unfavourable treatment occurred.