The Law Handbook 2024

Chapter 11.1: Discrimination and human rights 991 • giving evidence or information, or providing any document, in relation to a dispute or in connection with an Equal Opportunity Act proceeding or investigation; • attending a compulsory VCAT conference or mediation; • refusing to engage in discriminatory conduct or to sexually harass someone; • alleging that someone else has contravened the Equal Opportunity Act. Where a person is claiming they have been victimised because they havemade a complaint of discrimination or sexual harassment, they do not need to specifically state that a provision of the Equal Opportunity Act has been breached. They can simply allege that the conduct that would constitute a breach has occurred. For example, making a complaint of victimisation in employment does not need to also include a complaint that section 93 of the Equal Opportunity Act has been breached. It is not necessary to prove that discrimination or sexual harassment has occurred in order to bring a complaint of victimisation. Authorising or assisting discrimination A person must not request, instruct, induce, encourage, authorise or assist another to contravene the Equal Opportunity Act (s 105). If a person acts in any of these ways, a dispute can be brought to the VEOHRC, or an application can be made to VCAT against that person. If the other person (who has been requested, instructed, encouraged, authorised or assisted) proceeds to contravene the Equal Opportunity Act, a dispute can be lodged against both people with either the VEOHRC or VCAT (s 106). Discriminatory request for information The Equal Opportunity Act (s 107) prohibits a person asking for information that could potentially be used to discriminate against another person. An exception may apply if the information sought is reasonably requested or required for a non-discriminatory purpose (s 108). For example, employers should not ask questions about a job applicant’s religion or parental or carer responsibilities in interviews, unless they have a genuine non-discriminatory reason for doing so. A person who believes that they have been asked for information that could be used to discriminate against them can bring a dispute to the VEOHRC. The matter would be dealt with in the same way as a dispute about discrimination. Advertisements It is an offence under the Equal Opportunity Act (s 182) to publish or display, or authorise the publication or display of, an advertisement or notice that indicates an intention to discriminate unlawfully. For example, it is likely to be unlawful to indicate in a job advertisement that applicants should be 30 years old. Positive duty As noted above, the Equal Opportunity Act creates a positive duty, which obliges duty holders under the Equal Opportunity Act to take reasonable and proportionate measures to eliminate discrimination, sexual harassment and victimisation as far as possible. The reference to ‘reasonable and proportionate measures’ and the qualifying words ‘as far as possible’ aim to ensure that the level of compliance required is appropriate and proportionate to the size and operations of the duty holder, taking into account: • the size of the duty holder’s business or operations; • the resources and service priorities of the duty holder; • the nature and circumstances of the duty holder’s business or operations; • the practicability and cost of compliance. It is not possible to bring a claim to the VEOHRC or to VCAT for breach of positive duty. However, the VEOHRC may investigate breaches of positive duty as part of investigating systemic discrimination under Part 9 of the Equal Opportunity Act. Exceptions to the prohibition of discrimination Exceptions in the Equal Opportunity Act Discriminatory conduct may not be unlawful if one or more of the general or specific exceptions in the Equal Opportunity Act apply to the conduct. Some of the Equal Opportunity Act’s exceptions include: