Ask Us

Do you have any questions about your rights and responsibilities in relation to discrimination, harassment or vilification?

Ask us and each fortnight we will choose one question and publish an answer on this page.

If you require a personal response, or believe that your enquiry may necesitate a more detailed answer please contact our advice line on 9281 7100 or by email on complaints@veohrc.vic.gov.au

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DISCLAIMER
Please note that this service is provided solely for general information purposes. This service is not intended to provide independent legal advice. The Equal Opportunity Commission Victoria expressly disclaims any liability arising from the use of this service. If you require legal or other professional advice or assistance, you should seek the services of an appropriately qualified professional person.

Please note that confidentiality provisions in the Equal Opportunity Act prevent us from discussing the details of complaints lodged at the Commission.

If you would like to lodge a complaint or would like to discuss your enquiry in more detail, contact our Advice Line (03) 9281 7100, Country callers toll free (1800) 13 4142, TTY 9281 7110

Questions and Answers

I recently had three interviews for a position. Two weeks after the third interview I still had not received a reply so I contacted them to follow up.

The contact person told me I was in the running with one other person and they had decided to go with the other person because they were younger and a better fit for the position because of their age.

Do I have any rights in regards to this matter?

The Equal Opportunity Act makes it against the law for an employer to discriminate on the basis of age when offering employment. Employers should focus on the skills and experience required to perform the role, rather than irrelevant personal characteristics such as age, sex, race, and disability.

If you believe you have been discriminated against because of your age you can contact our free, confidential Advice Line for more information about making a complaint. Call (03) 9281 7100 or 1800 134 142 (country callers).

The Commission has also published A Fair Go for Jobseekers aimed at employers, recruitment consultants and human resource professionals to assist them to achieve best practice in recruitment.

Is it discriminatory to reject an application for a short-term casual position from a current employee? The employee’s current position is internal sales & administration and the casual position to be filled is truck driving.

It depends on why the application was unsuccessful.

The Equal Opportunity Act makes it against the law for an employer to discriminate against an employee because of 17 protected personal characteristics.

Refusing to appoint an internal applicant to a truck driving position could amount to discrimination if the decision was made based on the applicant’s age, sex, race, industrial activity or another protected characteristic.

However, if this decision was based on the applicant’s skills and experience, it may not amount to unlawful discrimination.

Anyone who believes they have been discriminated against can contact the Commission’s Advice Line on (03) 9281 7100 or 1800 134 142 (country callers).

Do you provide one-to-one training for staff who have breached equal opportunity laws?

A common question, the short answer is no. The Victorian Equal Opportunity & Human Rights Commission provides training and consultancy services to organisations to help them achieve best practice in equal opportunity in the workplace. We do not provide disciplinary training for individuals.

If someone is misbehaving and "having trouble getting the message", here are 3 options to consider:

Make sure you have equal opportunity policies in place, and promote this policy to ensure all staff are aware of their rights and responsibilities
Train everyone in the workplace, including the person who most needs the training and managers who have the authority (and obligation) to intervene to ensure workplace safety. This creates a shared understanding about standards of behaviour at work, and equips all staff to deal with any future issues appropriately and effectively
Treat the matter as a disciplinary issue. Draw the person’s attention to company policy and then discipline future breaches according to company disciplinary procedure
Refer to a specialist. Sometimes counselling can help. You can refer the person to the company's employee assistance program or get a referral from the Australia Psychological Society.

For more information about the Commission’s education and consultancy services phone (03) 9281 7168 or email education@veohrc.vic.gov.au

Can the local environmental protection group refuse my membership and prohibit me from attending meetings because my business activities involve the recreational motorcycle industry?

The Equal Opportunity Act makes it against the law to discriminate against someone because of a protected personal characteristic such as age, sex, disability, political beliefs, or parental status.

A person's 'business activities' are not protected by the Act, so while the situation you have described sounds unfair it seems unlikely that it would amount to unlawful discrimination under the Act.

You could explore the possibility of making a complaint to the organisation itself (its website should have information about who your regional contact is) about your exclusion from the meetings.

If the group receives government funding, you may also want to consider contacting the Ombudsman Victoria or the Commonwealth Ombudsman, who deal with complaints about the operation of government agencies, to ask for advice.

What are the time limits for making a complaint under equal opportunity legislation? What if the incident occurred more than 12 months ago?

Under the Equal Opportunity Act you can lodge a complaint of discrimination or sexual harassment with the Victorian Equal Opportunity & Human Rights Commission. The Commission helps people to resolve these complaints by offering a free, impartial conciliation process.

The Equal Opportunity Act does state that the Commission may decline the complaint if it relates to something that took place more than 12 months ago. The Commission does not necessarily decline all complaints for this reason – it depends on the circumstances of the complaint.

If your complaint is declined, you can ask to have the complaint referred to the Victorian Civil and Administrative Tribunal.

For more information call our Advice Line on (03) 9281 7100 or 1800 134 142.

I want to ask about the possibility of putting a limit on the number of boys enrolling at year 7.

We are a school that has gone from 60 students at year 7 to about 120 for next year but the gender balance is 85 boys and 35 girls. We would like to cap the number of boys at 90.

Can we do this?

The Equal Opportunity Act makes it against the law to discriminate against a person because of their sex in the provision of education. By refusing enrolment to male students because of their sex, you may leave yourself open to a complaint of sex discrimination.

However, the Act also allows people to apply for temporary exemptions (up to three years) from the Act. These applications must be made through the Victorian Civil & Administrative Tribunal (VCAT) and are heard on a case-by-case basis. When considering whether to grant an exemption VCAT looks at whether the proposed exemption is consistent with the aims, objectives and spirit of the Act. For more information contact VCAT on (03) 9628 9900.

If a Muslim employee, who works at a warehouse, wishes to perform a 10-minute obligatory religious prayer which occurs outside of his lunch time, is the employer obliged to facilitate that prayer?

Religious belief or activity is a personal characteristic protected by the Equal Opportunity Act.

The Act prohibits direct discrimination, where someone is treated unfairly because of a protected personal characteristic and that person is disadvantaged as a result. It also prohibits indirect discrimination, which occurs when treating everybody the same way disadvantages someone because of their personal characteristic.

Employers are obliged to make reasonable adjustments to workplace arrangements so that all employees can participate equally and not be disadvantaged because of a protected characteristic, unless doing so would cause “unjustifiable hardship” to their business and the effective work of the organisation. What is reasonable in each workplace depends on the nature of the work and the circumstances of the employer.

The employee could make a complaint of religious activity discrimination to the Victorian Equal Opportunity & Human Rights Commission. The Commission would consider the facts of the complaint, including how it would affect the employer to allow employees to adjust their work hours. Depending on the circumstances, the Commission may decide to refer the complaint to conciliation or decline it.

Can a prospective employer ask questions about WorkCover claims in a job interview?

Under the Equal Opportunity Act, it is against the law to discriminate against a job applicant or an employee because they have a disability or impairment. It is also against the law to ask a job applicant or employee for information that the employer could use to discriminate against them.

Unless the information is genuinely required for a non-discriminatory purpose, asking a job applicant or employee questions about:

whether they have ever made a workers’ compensation claim
how many days sick leave they took in the previous year
questions about their health that do not relate to the job requirements

could lead to a complaint to the Victorian Equal Opportunity & Human Rights Commission. A job applicant should be assessed on their ability to do a job, not whether or not they have an injury.

Some workers’ compensation insurance schemes may require successful job applicants to complete a questionnaire about pre-existing medical conditions. If an employee does not disclose an injury or illness and it recurs or deteriorates because of their work, he or she may not be eligible to receive compensation.

The Commission has published an Injured Workers factsheet which has information about the law and tips for avoiding discrimination complaints in this area.

If the organisation I work for wishes to employ a woman to treat female patients and deal with women’s health issues, is it illegal to specifically advertise for a female practitioner?

Under the Equal Opportunity Act, it is against the law for a job advertisement to show an intention to discriminate against anyone because of their sex.

This means that an advertisement must not openly state, or even imply, that the position is only available to people of a particular sex.

You could apply to the Victorian Civil and Administrative Tribunal (VCAT) for an exemption to the Act. This would allow you to advertise for a female practitioner to fill the role.

There is also an exception in the Act that says when it is a “genuine occupational requirement” of the job that the employee be of one sex, you may advertise for a person of that sex. For example, it is a “genuine occupational requirement” when it's necessary to protect privacy and preserve decency in jobs which involve fitting clothes, searching people, entering lavatories or areas where one sex will be in a state of undress.

Contact the Commission’s Advice Line on (03) 9281 7100 for more information.

Recently a job interviewer asked if I planned to have children. I wasn’t sure what to say. Is this legal?

It is against the law to ask discriminatory questions at a job interview. Although a question like this can really put you ‘on the spot’, it is important to remember you have rights.

If you are asked a question like this in a job interview, ask why the question is relevant to the job requirements, and focus on the skills and experience you will bring to the role.

Under the Equal Opportunity Act, it is against the law for employers to ask job applicants for information about their parental status, marital status, age, pregnancy, or industrial activity and refuse them a job because of their answer.

Employers should stick to interview questions about your ability to do the job. If they refuse to employ you because of your actual or assumed plans to have (or not to have) children, you can make a complaint of discrimination to the Commission.

If you feel you have been discriminated against, call the Commission’s free Advice Line on (03) 9281 7100 for more information about making a complaint.

I work in the airline industry. There have been a number of redundancies recently, resulting in staff having to take on broader job descriptions. This broader work requires me to wear a facemask, but because I have a beard, which is more like overgrown stubble, I fail the mask test. It has now reached the stage where there is immense pressure to shave my beard which I have had for 10 years.

If they did sack me or make me redundant, which I fear they will do, could I make a complaint against them?

Under the Equal Opportunity Act it is against the law for an employer to discriminate against a person because of their physical features.

There is an exception in the Act that says a person may discriminate against another person because of their physical features if it is necessary for health and safety reasons. This means in some circumstances discrimination may be not be against the law if it is to protect your health and safety or the general public’s.

You can make a complaint to the Victorian Equal Opportunity & Human Rights Commission if you are sacked or made redundant. The Commission will consider the facts of your complaint and whether any exceptions apply. If it is clear that wearing the facemask is necessary for health and safety reasons, the Commission may decide to decline your complaint.

For more information, contact the Commission on (03) 9281 7100 or 1800 134 142 (country callers).

I am an elected councillor in local government. At the start of every meeting, everyone present is asked to be upstanding while a prayer is read. The prayer refers to God and concludes with “Amen”. Is it discrimination to force everyone present to participate in a religious activity that may not be part of their faith?

Under the Equal Opportunity Act it is against the law to discriminate against someone because of their religious belief or activity.

Discrimination is against the law when it occurs in public life and includes the behaviour of local government councillors towards each other while performing their public duties.

If you choose not to say the prayer and are disadvantaged as a result - for example, if you are criticised, excluded or asked to leave the meeting – you could make a complaint to the Victorian Equal Opportunity & Human Rights Commission.

For more information contact the Commission’s Advice Line on (03) 9281 7100 or 1800 134 142 (country callers).

Can we apply for an exemption from the Equal Opportunity Act to take pregnant correctional officers (prison guards) out of our high-risk (direct contact with prisoners) environment and relocate them into a safer working environment? Many of our prisoners are highly volatile, violent and have absolutely no respect for women let alone pregnant women.

Is this discrimination?

The Equal Opportunity Act makes it against the law for an employer to discriminate against someone because of a protected personal characteristic such as pregnancy. This means it is against the law to sack or demote an employee, deny her access to benefits such as promotions or training opportunities and/or unfairly change the conditions of her employment because she is pregnant.

There is an exception in the Act that says "A person may discriminate against another person on the basis of pregnancy if the discrimination is reasonably necessary to protect the health or safety of any person (including the person discriminated against)."

When deciding if your proposed action is ‘reasonably necessary’, it is important to consider what kinds of risks the pregnant worker faces, what alternative arrangements could be put in place, and what might happen as a result of taking (or not taking) this action.

You could also apply to the Victorian Civil and Administrative Tribunal (VCAT) for a temporary exemption (up to three years) from the Equal Opportunity Act. When considering whether to grant an exemption VCAT looks at whether the proposed exemption is consistent with the aims, objectives and spirit of the Act. For more information contact VCAT on (03) 9628 9900

The Commission has published a ‘Pregnancy and the workplace’ factsheet which has information about the law and tips for avoiding pregnancy discrimination in the workplace. This factsheet is available here

My employer recently decided that there were too many people in my department and that one staff member needed to be transferred to another department. My employer asked one of my colleagues whether he wanted to stay or go to the other department and was given 24 hours to decide. He decided to stay.

I was then told that I was going to be transferred. I asked whether I had a choice as I currently enjoyed working where I was. I was told I had no choice.

I feel that I have not been treated equally in this matter and that they have discriminated against me. Do I have a right to lodge a complaint with the Victorian Equal Opportunity & Human Rights Commission?

Firstly, it depends on why you weren’t given the choice, compared to your colleague. Was it because he has been with the company longer? Or was it because you have a disability or because of your age?

Under the Equal Opportunity Act, it is against the law for an employer to discriminate against someone because of a personal characteristic such as age, sex, disability, or religious belief. Click here to see the full list of protected characteristics. If the decision was based on you having one or more of these characteristics, then you may have grounds for a complaint to the Commission.

It also depends on how the transfer affects you. Discrimination is treating a person unfairly because of a personal characteristic and that person being disadvantaged as a result. This may include demoting an employee or refusing to offer promotions and training.

For example, if you were transferred because of your age and the transfer meant your pay or conditions were reduced, this may be grounds for a complaint.

For more information contact our Advice Line on (03) 9281 7100 or 1800 134 142 (country callers).

I am a senior public servant with on long standing mental health issue. I have managed it for over 10 years with all sorts of help without work knowing. This is getting harder.

What are my rights if I chose to talk to my employer about this condition? Can they sack me, demote me or reduce my pay?

Choosing to disclose an illness or health condition to your employer can be a big decision. Unless your condition directly affects your work, your ability to perform your job or the health and safety of people or property, you are under no legal obligation to disclose it.

If you do choose to tell your employer, it is against the law for them to discriminate against you because of your condition. Discrimination is treating someone unfairly because of a personal characteristic and that person being disadvantaged as a result. This may include refusing to offer a job, dismissing an employee or refusing to offer promotions or training.

An employer could not sack you, demote you or reduce your pay simply because you have a mental illness. Employers are also obliged to make reasonable adjustments to accommodate your disability or impairment, unless they would result in “unjustifiable hardship” to their business and the effective organisation of work.

The Commission has recently published guidelines about disclosing a disability in employment. For a free copy of ‘Disclosing Disability in Employment’, contact paula.crimmins@veohrc.vic.gov.au or (03) 9281 7122 (Wednesday to Friday).

I'm employed by a bus company. Part of our work is a contract to supply buses and drivers to an oil refinery to move employees around the plant twice a day. To drive these buses you must do a safety induction at the plant. Only a few of the drivers are put through this induction, which is done as overtime. Other employees want to do the induction but aren’t given the option to, which means they don’t have access to the overtime benefits and can’t do the work at the plant.

Is this discrimination?

It depends on why you and your colleagues have not been given the opportunity to take the safety induction.

The Equal Opportunity Act makes it against the law for employers to discriminate against a person because of 17 personal characteristics. Discrimination means treating someone unfairly and that person being disadvantaged as a result.

Refusing or limiting some employees’ access to employment benefits such as overtime could amount to discrimination if the reason that you haven’t been offered the overtime is because of your age, race, industrial activity or another protected personal characteristic.

Anyone who believes they have been discriminated against can contact the Commission’s Advice Line on (03) 9281 7100 or country callers 1800 134 142.

I run a clothing import and distribution company. Do we have to provide disabled access and disabled toilets for our warehouse/office areas?

Under the Equal Opportunity Act, it is against the law to discriminate against someone who has a disability or impairment in areas of public life including accommodation, clubs, employment, education, goods and services, land transfers and sport.

'Goods and services' covers a range of activities, including the buying and selling of items in shops and other outlets such as warehouses.

As an employer and a goods and services providers, if your warehouse and office areas are inaccessible to a person with a disability, you may be leaving yourself open to a complaint of discrimination.

The Human Rights and Equal Opportunity Commission (HREOC), Australia's federal anti-discrimination body, has information and guidelines for access to buildings and services that may help you. You can access them at http://www.hreoc.gov.au/disability rights/buildings/guidelines.htm

What happens if you are found guilty of bullying at the Victorian Equal Opportunity & Human Rights Commission?

You can't actually be 'found guilty' of bullying at the Victorian Equal Opportunity & Human Rights Commission.

The Commission is not a tribunal or court. We do not prosecute, or make judgements for or against either side. We help people resolve complaints by offering a free, impartial and confidential conciliation process that gives people the opportunity to resolve complaints by mutual agreement. For more information, see Making a complaint.

The Commission deals with complaints of discrimination, where a person is treated unfarily because of a personal characteristic and that person is disadvantaged as a result. In Victoria, it is against the law to discriminate against a person because of a personal characteristic such as age, sex, disability or religious belief. The Commission also deals with complaints of sexual harassment and racial and religious vilification.

Bullying on its own is not grouds for a complaint to the Commission. However, depending of the cirmcumstances, bullying of a personal characteristic may amount to discrimination and you may be able to lodge a complaint with us. For more information contact our Advice Line on (03) 9281 7100 or country callers 1800 134 142.

Do expressions of feelings towards someone at work constitute 'sexual harassment'?

There isn’t a simple ‘yes’ or ‘no’ answer to this question - it depends on the circumstances.

Sexual harassment is defined as:

An unwelcome sexual advance, or
An unwelcome request for sexual favours, or
Other unwelcome conduct of a sexual nature

which would lead a reasonable person to experience offence, humiliation or intimidation. It can be physical, verbal, or written. Under the Equal Opportunity Act, sexual harassment is against the law when it occurs in public life, such as at work. More about sexual harassment.

If the expression of feelings is repeated or unwelcome, is stated in a way that would lead a reasonable person to be offended, humiliated or intimidated, or is accompanied by unwelcome sexual conduct – for example, touching or groping – this could constitute sexual harassment.

Anyone who has experienced sexual harassment at work or in another area of public life can contact the Commission’s Advice Line on (03) 9281 7100 or complaints@veohrc.vic.gov.au about making a complaint.

What are the responsibilities that fall onto the employer once it is brought to their attention that there is some form of harassment and or vilification felt by member of the team? Is there a process that needs to be followed and at what point of time does a third party need to be involved?

Employers have a responsibility to ensure they have effective equal opportunity and anti-harassment policies and procedures in place to prevent these kinds of behaviour. For more information on how to build a safe, discrimination free work environment see What do I need to do? - for employers.

If there is an allegation of discrimination, harassment or vilification in your workplace the following options may be used:

Internal management: Most problems can be resolved internally using informal or formal processes. For more information see Resolving conflict internally
External complaints resolution: the Victorian Equal Opportunity and Human Rights Commission deals with complaints of discrimination, sexual harassment and racial and religious vilification. For more information about responding to a complaint, see Steps for Employers

There is no set point at which an external complaint resolution organisation such as the Commission must become involved.

The individual who believes they have been discriminated against, sexually harassed or racially or religiously can choose to make a complaint to the Commission at any time. For more information about making or responding to a complaint contact the Commission’s Advice Line on (03) 9281 7100 or complaints@veohrc.vic.gov.au for more information.

Does the Victorian Equal Opportunity and Human Rights Commission have the power to hear Federal matters? And does the Federal Court hear matters related to the Equal Opportunity Act?

The Victorian Equal Opportunity and Human Rights Commission does not deal with complaints made under Federal laws. The Commission can receive complaints under the Equal Opportunity Act 1995 and the Racial and Religious Tolerance Act 2001, which are both State laws.

Under the Equal Opportunity Act it is against the law to sexually harass someone or to treat someone unfairly or less favourably because of 17 personal characteristics.

Under the Racial and Religious Tolerance Act it is against the law to incite or encourage hatred, serious contempt, revulsion or severe ridicule against another person, or group of people, because of their race or religion.

The Commission investigates every complaint and can help people to resolve complaints under these Acts by offering a free, impartial conciliation service. The Victorian Civil and Administrative Tribunal (VCAT) can deal with complaints that have come to the Commission but have been declined or have not been resolved through conciliation.

The Human Rights and Equal Opportunity Commission (HREOC) is the federal organisation that deals with complaints lodged under the Commonwealth Racial Discrimination Act, the Sex Discrimination Act, the Disability Discrimination Act, and the Human Rights and Equal Opportunity Act. For more information about the characteristics protected by these laws you can visit www.hreoc.gov.au

The Federal Court of Australia and the Federal Magistrates Court can hear complaints that have come to HREOC but have not been resolved. HREOC does not deal with complaints made under State laws.

Are there any blanket rules regarding tattoos and facial piercings such as nose and eyebrow rings? For example, can an employer insist that an office worker or supermarket cashier wear long sleeves and remove nose rings?

An employer can set reasonable standards of dress, appearance and behaviour to create and maintain an image for their organisation that best suits their industry and their client’s needs. This can include setting rules about what jewellery or other forms of body art are acceptable.

A reasonable dress code takes into account:

The industry – different dress standards will apply to people that work in a bank compared to a construction site.
The nature of the job – a position that involves lots of direct contact with customers may require a different dress standard to someone working in a behind-the-scenes role.
Health and safety issues – jewellery or loose clothing may pose a safety risk.
Competitive positioning – a five star hotel may require a more rigourous appearance code than a backpacker hostel.
The impact on the employee – asking a Sikh to remove a turban has a greater impact than asking someone to remove a fashion accessory.

However, it is against the law to discriminate against an employee by treating them less favourable than someone else because of their dress or appearance. Examples of this kind of discrimination include sacking or demotion, denying opportunities of promotion or other benefits, or enforcing rules that some employees cannot comply with compared to others. An employee who believes they have been discriminated against in this way can lodge a complaint with the Victorian Equal Opportunity and Human Rights Commission. Find out how to lodge a complaint.

I recently applied for a job in local government position and was unsuccessful - the position was not filled. I was told over the phone that I had too much experience and the council was looking for a candidate with less experience. I met all the selection criteria and demonstrated this at the interview. I am suitably qualified for the job and my resume explained that I had been working for 18 years. The job application asked for tertiary qualifications and experience within the field, and that highly developed organisational skills are essential.

I feel that telling me that I am too experienced and they are looking for less experience is telling me that I am too old for the job and that they want someone younger. I feel that I have been discriminated on the basis of my age. I am 45. Is it legal for the council to have in mind a younger person for the job?

What you have described here sounds like it could be a case of age discrimination.

Generally speaking, the Equal Opportunity Act makes it unlawful for an employer to discriminate on the basis of age in offering employment. An employer who favours a certain age group is opening themselves up to a complaint of age discrimination, unless the employer has been granted an exemption from the Act by the Victorian Civil and Administrative Tribunal.

If this organisation does not have an exemption, then it is possible that there are grounds for a complaint of age discrimination to the Commission. The Commission helps people to resolve complaints by mutual agreement, through a free and impartial conciliation process.

In order to show that you have been discriminated against, you would need to show why you believe your age was a substantial reason for you to not be appointed to this position. The Commission’s complaint officers can help prepare a written statement of complaint. You can contact the Commission’s Advice Line on (03) 9281 7100 or by emailing complaints@veohrc.vic.gov.au for more information.

For more 'ASK US' please visit the archive

Please note that confidentiality provisions in the Equal Opportunity Act prevent us from discussing the details of complaints lodged at the Commission.

If you would like to lodge a complaint or would like to discuss your enquiry in more detail, contact our Advice Line (03) 9281 7100, Country callers toll free (1800) 13 4142, TTY 9281 7110