The Law Handbook 2024

986 Section 11: Rights, activism and fair treatment at work • disability or presumed disability (including physical, intellectual or psychological disabilities, diseases, illnesses and injuries, genetic predisposition towards a disability, and manifestations of a disability); • age; • industrial activity (being or not being a member, joining or not joining an industrial organisation or association, such as a union); • physical features (a person’s height, size, weight or other bodily characteristics, but does not include make-up and clothing); • religious belief or activity (e.g. holding or not holding a religious belief); • political belief or activity (e.g. holding or not holding a political belief); • parental status, or status as a carer (where another person is wholly or substantially dependent on a person for ongoing care and attention, but not on a commercial basis); • employment activity (either making a reasonable request to your employer or principal or host agency for information about your entitlements or expressing concern that some employment entitlements have not/will not be received); • expunged homosexual conviction (as defined in Part 8 of the Sentencing Act 1991 (Vic)); • profession, trade or occupation; • sex characteristics; • a spent conviction; • personal association (whether as a relative or otherwise) with a person who has any of the above attributes. Discrimination on the basis of an attribute includes discrimination on the basis: • that a person has the attribute or had it in the past (e.g. a person is denied a full-time position because they had a back injury that has now healed); • of a characteristic* that a person with that attribute generally has or is generally imputed to a person with that attribute (e.g. a person is denied a promotion on the basis that she has recently become pregnant, and it is assumed that female employees who have a family cannot take on more demanding work); or • that a person is presumed to have an attribute or to have had it at any time. In the recent case of Austin Health v Tsikos [2023] VSCA 82, the Court of Appeal confirmed that unconscious bias can amount to direct discrimination under the Equal Opportunity Act. * A ‘characteristic’ includes forms of assistance that a person with disability uses or needs to alleviate the effects of the disability. Examples include equipment (e.g. a therapeutic device), the assistance of a carer or interpreter, or an assistance dog (i.e. one trained to perform tasks or functions that assist a person with disability to alleviate the effects of their disability). Discrimination can be direct or indirect (see Direct and indirect discrimination’, below), or a breach of one of the stand-alone duties in the Equal Opportunity Act (s 7). The stand-alone duties in the Equal Oppor­ tunity Act (s 7) are: • An employer or firm – in organising working arrangements – must not unreasonably refuse to accommodate the responsibilities that a person has as a parent or carer (including for a person offered employment or partnership). • An employer, principal, firm, service provider or educational authority must make reasonable adjustments that are required for a person with a disability, except: – where the employer, firm, service provider or educational authority complies with the disability standards under the Disability Discrimination Act 1992 (Cth) or a determination made under section 160B of the Building Act 1993 (Vic); or – in the case of employment and firms, where the person cannot adequately perform the genuine and reasonable requirements of employment even after adjustments are made; or – in the case of an educational authority or service provider, where the person could not participate in, or continue to participate in, or derive any substantial benefit from the educational program or service even after the adjustments are made. The Equal Opportunity Act provides guidance about assessing what is ‘reasonable’ having regard to all the facts and circumstances. Factors to consider include the person’s circumstances and the nature of their disability, the nature of the adjustments required, the financial circumstances of the person making the adjustment, and the consequences for both the person seeking the adjustment and the person making the adjustment. • An accommodation provider cannot refuse to pro­ vide accommodation to a person with disability because that person has an assistance dog. • A landlord must allow a person with disability to make reasonable alterations to the