What can you do if you feel discriminated against?
Our research showed that very few cases of genetic discrimination have been taken to tribunals seeking legal redress. Australians reported financial and emotional barriers to seeking help, as well as not knowing where or how to complain.
1. Talk to someone
talk to a friend or family member about what happened and what you would like to do
talk to the person or organisation causing you problems - sometimes it is not done on purpose, and will stop if it's made clear that it's unfair.
2. Write a complaint letter
use the proforma in the Appendix to this booklet to set out what has happened to you.
use this information either to write your own letter to the person who has discriminated against you, or treated you unfairly or to seek further advice (see next paragraph).
3. Get advice and find out about your rights You could approach:
the Australian Human Rights Commission which leads the implementation of the Disability Discrimination Act 1992.
the Victorian Human Rights and Equal Opportunity Commission
Victoria Legal Aid
a trade union
another organisation who may be able to help you with advice
All of these services are free (though if you consult a lawyer, you will have to pay for the lawyer’s services).See the Links and Resources section for the contact details of relevant organisations.
4. Stand up for your rights - make a complaint: You should not be afraid to lodge a formal complaint if other attempts to resolve your problem have failed.The federal and state anti-discrimination legislation protects you, and anyone who assists you in making a complaint, from being further discriminated because of the complaint. The time limit for lodging complaints may be limited and there are also strict time limits for appeals.
The staff in these agencies can give you advice or may refer you to another organization if that is appropriate. Most agencies can give you advice in private and will protect your confidentiality. You do not need to have decided to make a formal complaint and you can discuss what has happened so that you have enough information to make a decision about what to do. Most agencies are also quite happy for you to take a friend or family member with you when you go to talk to someone about your situation.
To whom can you complain? The two principal agencies to which you can complain are: 1The Australian Human Rights Commission (AHRC) which leads the implementation of the Disability Discrimination Act 1992 (Cth)(DDA) under the Australian Human Rights Commission Act 1986 (Cth) (AHRCA).The AHRC can conciliate disputes or refer them to other bodies; e.g. a discriminatory industrial instrument could be referred to Fair Work Australia: see AHRCA s 46PW. 2The Victorian Human Rights and Equal Opportunity Commission, under the Equal Opportunity Act 1995 (Vic).
A complaint alleging unlawful discrimination cannot be made under the Commonwealth and state legislation at the same time. You may need to seek advice about which complaint procedure is more appropriate for your problem but the Australian Human Rights Commission or the Victorian Human Rights and Equal Opportunity Commission could advise you about how to seek further advice if that is necessary. Grounds for complaint The grounds for complaint and other provisions vary slightly from one Act to another. The Disability Discrimination Act 1992 (Cth) and the Equal Opportunity Act 1995 (Vic) both prohibit direct and indirect discrimination on certain grounds in relation to specific types of activities. What is “discrimination” under the legislation? Discrimination under the legislation may be direct or indirect. Direct discrimination on genetic grounds occurs when a person treats, or proposes to treat, another person less favourably because of the person’s genetic information (includingfamily history) than he or she would treat a person without that information or family history, in circumstances that are not materially different. For example, a person with a “disability” may have difficulty in getting a job or in the conditions of employment. An employer might say "people with cancer can’t handle stress, so you can't have this job". Or the person may not be able to gain access to goods and services, such as banking, insurance and loans; or to get appropriate accommodation. Discrimination may also occur if a person does not make reasonable adjustments for another person when that could be done without unjustifiable hardship
Indirect discrimination may be more subtle. It occurs when a person requires, or proposes to require, another person to comply with a requirement or condition (for example, when seeking a job); and that person does not or cannot comply because of a disability, and is therefore disadvantaged. As with direct discrimination, a failure to make reasonable adjustments for the other person is also relevant. For example, a building with an entrance accessed only by steps indirectly discriminates against people who use wheelchairs or have other mobility impairments if level access or lifts or ramps could reasonably have been provided. However, in some cases, a person who is alleged to have indirectly discriminated may be able to prove that a requirement or condition that would otherwise constitute discrimination is reasonable and then it is allowed.
What about discrimination on genetic grounds? Disability Discrimination Act 1992 (Cth) Under the Disability Discrimination Act 1992 (Cth), you can complain if you have been directly or indirectly discriminated against because of a disability which means, as stated in the definition in the Act (s 4(1)):
a total or partial loss of bodily or mental functions;
a total or partial loss of a part of the body;
the presence in the body of organisms causing disease or illness or capable of causing disease or illness;
the malfunction, malformation or disfigurement of a part of the body;
a disorder or malfunction that results in learning differently from other people; or
a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.
The disability may be one that:
previously existed but no longer exists;
may exist in the future (including because of a genetic predisposition to that disability) (emphasis added);
or is imputed to a person.
The Act states that the definition of disability also includes behaviour that is a symptom or manifestation of the disability. Note that the definition of ‘disability’ makes it clear that it covers a genetic predisposition. This amendment to the earlier definition was made in 2009.
Equal Opportunity Act 1995 (Vic) The EO Act is the primary anti-discrimination legislation in Victoria.Both direct and indirect discrimination are unlawful under this Act. Under the EO Act 1995 (Vic), you can complain if you have been directly or indirectly discriminated against because of:
an “attribute” (ss 8 and 9), which is defined to include “impairment”: s 6(b). The definition of “impairment” in s 4 includes loss of a bodily function; the presence in the body of organisms that may cause disease; loss, malfunction or malformation of a part of the body, including a mental or psychological disease or disorder; and a learning disorder. Genetic conditions are not specifically mentioned but they may be covered if they cause symptoms such as these.
an attribute (or impairment) or characteristic that you have been presumed to have, or to have had, whether you have it or not: s 7(2). This may cover a genetic condition and also a predisposition.
a personal association that you have with another person (whether as a relative or otherwise) who has an attribute, including impairment as defined above: s 6(m).
You can also complain if a person asks you for information that could be used to discriminate against you unless it is reasonably requested or required for a non-discriminatory purpose: s.100. For example, an employers should not ask questions in an interview about your health, family history or parental or carer responsibilities unless there is a genuine non-discriminatory reason for doing so.
In what areas is discrimination unlawful under the legislation? Not all acts of discrimination on the grounds of disability or impairment are unlawful. Discrimination is unlawful only in specific areas – denying or restricting access to insurance (especially life, superannuation, disability and other income protection insurance); employment, education; premises; goods, services and facilities; accommodation; land; clubs and incorporated associations; sport; and programs administered by the Commonwealth. “Services” in which unlawful discrimination is prohibited under this Act include services relating to entertainment, recreation or refreshment; transport or travel; telecommunications; services of the kind provided by the members of any profession or trade; and services of the kind provided by a government (s 4(1) definition of “services”).
Is there a time limit for making a complaint? If you think you might want to make a complaint about discrimination you should contact the relevant body as soon as possible. This is especially important if you have been sacked, because if you decide to take legal action to get your job back, you may have as little as 21 days to lodge an application.For most complaints about discrimination to agencies such as the Australian Human Rights Commission you have between six months and one year to make a complaint.
Does the person I am complaining about have to know who I am? Yes. The person or people you are complaining about will have to know about you and your complaint.Complaints are usually resolved when both sides of the story are known - this means both parties must know who the other person is and they said or did.
Can I withdraw my complaint? You will need to write to the person handling the complaint and tell them that you want to withdraw it.No-one else can withdraw the complaint except you. If your complaint has been made to the Australian Human Rights Commission, then the President will need to consent to the complaint being withdrawn but the President must consent if all the affected persons agree (Australian Human Rights Commission Act s 46PG). Your file will then be closed and nothing more will be done with it; but it will not be re-opened later if you change your mind.
Checklist for lodging a complaint
The complaint must be in writing
Anyone else can help you write the complaint, and it can be in any language.
The complaint can be in the form of a letter (as in the proforma in the Appendix to this booklet), or on an established form, which you can ask for or download from the relevant website.
In your complaint, you need to say why you think you have been discriminated against. Describe what happened, where it occurred, who was involved, and give the names of any witnesses.You also need to point out the effect of this treatment, for example, that you weren't given the job you applied for.
You don't have to prove your complaint or to provide evidence as such, but you do need enough information to show that there has been a breach of the legislation.
What will happen after you lodge a complaint? The purpose of the anti-discrimination legislation is to enable people who have experienced certain forms of discrimination to access confidential conciliation services (which aim for mutual agreement rather than a decision in favour of one side) and, in some instances, a public hearing, to resolve the complaint. Australian Human Rights Commission You can seek ‘redress for unlawful discrimination’ by lodging a complaint with the Australian Human Rights Commission under the Australian Human Rights Commission Act 1986 (Cth) Part IIB (the Australian Human Rights Commission deals with complaints arising under the Disability Discrimination Act) . If you need assistance with your complaint, the Commission will help you.
After you lodge your complaint, the President of the Australian Human Rights Commission will make enquires into your complaint and must attempt to conciliate the complaint unless it has been settled or resolved, or you decide not to proceed with it.
Conciliation The conciliation process encourages the people involved in a complaint to talk through the issues with the help of someone impartial and to settle the matter on their own terms. Feedback shows that most people find this process fair, informal and easy to understand. It also helps them to understand the issues better and come up with solutions that are appropriate to their circumstances. Complaint outcomes have included apologies, reinstatement to a job, compensation for lost wages, changes to a policy or developing and promoting anti-discrimination policies.
Powers of investigation The President has statutory power to require people to provide information to investigate complaints. This includes requiring people to give the President a signed document containing relevant information; to produce relevant documents; and to attend a compulsory conference, which will be held in private.
Termination of complaint by President The President may terminate (discontinue) a complaint if satisfied that the complaint:
does not involve unlawful discrimination;
was lodged more than 12 months after the alleged unlawful discrimination took place;
is trivial, vexatious, misconceived or lacking in substance;
involves a matter that has already been adequately dealt with, or for which there is another more appropriate remedy reasonably available;
would be more effectively or conveniently dealt with by another statutory authority;
involves an issue of public importance that should be considered by the Federal Court or the Federal Magistrates Court; or
has no reasonable prospect of being resolved by conciliation.
If the President decides to terminate a complaint, the complainant may then apply to the Federal Magistrates Court or the Federal Court of Australia to have their allegation(s) heard and determined. Either of these Courts can make an order that the complainant be paid compensation, be offered employment, and receive a public apology from the discriminator or any other order that redresses the discrimination.
The Commissioner must refer complaints for conciliation unless that seems inappropriate, in which case the complainant can require the complaint to be referred to the Victorian Civil and Administrative Tribunal.The Commissioner can require people to attend and produce documents. Complaints that raise an issue of important public policy may be transferred directly to the Tribunal.
Possible outcomes of conciliation are:
an apology (verbal or written, private or more public);
a job reference or reinstatement;
access to a previously denied job opportunity or service;
an agreement to change or stop behaviour;
an agreement to put equal opportunity policies in place; and
equal opportunity training.
It is free to complain of discrimination and human rights breaches.However, if you employ your own lawyer, you will need to pay for their fees.
This information is intended as a general guide only and you should obtain legal advice if you have specific questions.