The Law Handbook 2024

Chapter 11.1: Discrimination and human rights 987 accommodation to meet their special needs, provided certain conditions are met (including that the tenant pays for the alterations, they do not require alterations to other people’s property, they agree to restore the accommodation to its previous condition when leaving, and that it is reasonably practicable to do so). • An owners corporation must allow a person with disabilitytomakereasonablealterationstocommon property to meet their special needs, provided a number of conditions are met (including that they pay for the alterations themselves, they do not require alterations to other people’s lots, the alterations do not adversely affect other people’s interests, and they agree to restore the common property to its previous condition before vacating their lot). Owners corporations also provide services (e.g. in the common property) under the Equal Opportunity Act and are therefore obliged to make reasonable adjustments for people with a disability (s 45). Note that breaching these stand-alone duties amounts to discrimination without needing to prove direct or indirect discrimination. A person’s motive for engaging in discriminatory conduct under the Equal Opportunity Act is irrelevant (s 10). Similarly, in determining whether or not a person has directly or indirectly discriminated against someone, it is irrelevant whether they are aware of the discrimination (ss 8(2), 9(4)). Discrimination can occur by a person acting alone or with others, or by doing an act, or failing to do something (s 11). Direct and indirect discrimination Direct discrimination (s 8) Direct discrimination occurs when a person with a particular attribute is treated (or proposed to be treated) unfavourably because of that attribute. The focus of the test for direct discrimination is on the reasons for the treatment. For example, a person is informed that even though they were the best applicant for a job, they have been unsuccessful because they are too young. It doesn’t matter if there is more than one reason for the treatment, as long as the attribute is a substantial reason. Indirect discrimination (s 9) Indirect discrimination occurs when an unreasonable requirement, condition or practice is imposed in a particular situation (e.g. applying for a job) and appears to treat people the same, but has, or is likely to have, the effect of disadvantaging people with an attribute. To establish whether a person has experienced indirect discrimination, consider three factors: 1 whether there is a requirement, condition or practice; 2 whether the requirement, condition or practice has the effect of disadvantaging a person with a protected attribute; and 3 whether the requirement, condition or practice is reasonable. Whether a requirement, condition or practice is reasonable depends on all the relevant circumstances. It is the obligation of those seeking to impose the requirement, condition or practice to prove its reasonableness. Relevant circumstances to consider when determining reasonableness include (s 9(3)):* • the nature and extent of the disadvantage; • whether the disadvantage is proportionate to the result sought; • the cost of alternatives; • the financial circumstances of the person imposing or proposing to impose the requirement, condition or practice; and • whether reasonable adjustments can be made to lessen the disadvantage. * This is not an exhaustive list; there may be other relevant factors. Positive duty Duty holders – including employers, educational authorities, and providers of goods and services – should be aware that under the Equal Opportunity Act (s 15), they have a positive duty to take reasonable and proportionate measures to eliminate discrimination, sexual harassment and victimisation as far as possible. The VEOHRC can use its enforcement powers to assess compliance with the positive duty (discussed below). Areas of discrimination Not all acts of discrimination are unlawful under the Equal Opportunity Act. Unlawful acts of discriminationareonly those that occur incertainareas of public life on the basis of a protected attribute. Unlawful discrimination is prohibited in these areas: