Introduction
What is discrimination?
The law in action
The golden rule
Introduction
What are country people like? And Sydneysiders?
What are Rugby Union supporters like? Or League fans?
The chances are, that if you are in one of these groups, you’ll be able to describe the opposite group in some detail. Is your description complimentary and positive? Or do you see them in a somewhat less flattering light than the members of your own group?
What you’ve done, is to come up with a stereotype of the people in each of these groups. There’s nothing wrong with that. We all do it all of the time. And we tend to see people in groups other than our own in a less flattering light than people who are just like us. That’s normal too.
In the workplace, however, or in the provision of goods and services, rental accommodation, registered clubs or public education, if you make decisions on the basis of a stereotype, you could be discriminating against them.
What is discrimination?
Discrimination is when you treat someone less favourably that others, in the same or similar circumstances (direct discrimination) or when you impose a requirement or condition with which most people can comply but with which is difficult for people in particular groups. If the requirement is unreasonable in the circumstances, you maybe guilty of indirect discrimination.
Of course, not all stereotypes are covered by the Anti-Discrimination Act. If you treat someone who came from Tasmania less favourably than others because you have a poor opinion of Tasmanians, that is not unlawful. If you treated an Indigenous person from Tasmania less favourably because of your stereotypical beliefs about people of his or her race, that would be unlawful.
Under NSW law, it is unlawful to discriminate against people because of their sex, race, marital status, pregnancy, age, disability, homosexuality, transgender or carers responsibilities. It is also unlawful to discriminate against someone because they are a relative or associate of a person in one of those groups.
Public acts designed to cause serious contempt, hatred or ridicule of a racial group, people with HIV/Aids homosexuals or transgender people, is vilification and that too is unlawful, as is victimising someone because they have complained about discrimination.
The law in action
Two recent cases illustrate how stereotyped views about people in particular groups can result in a finding of unlawful discrimination.
In one case, QBE Insurance v Bassinelli [2004], 7/4/04, FCA396, a woman who had breast cancer won a holiday to Japan. When she went to get travel insurance, however, she was refused. Insurance companies are allowed to discriminate against people if they have actuarial data to prove that those people pose a higher than normal risk to them.
In this case, the insurance company argued that it’s ‘medical appraisal guidelines’ said that ‘conditions that should be considered for “no policy”…are terminal cancer’.
The Federal Magistrate agreed that this was unlawful discrimination on the ground of the woman’s disability. He said that there was only anecdotal evidence of previous large claims by people with breast cancer and no firm actuarial evidence relating to her condition. He said that the company’s decision was based on a stereotype of people who have breast cancer as being terminally ill.
The woman was awarded $5,000 plus costs.
The other case, Hooper ans ors [2005] HEA03/105 10/10/05, involved Virgin Airlines and it got a lot of media attention at the time.
After the collapse of Ansett a lot of their former employees applied for jobs at Virgin.
When a number of them applied for jobs as flight attendants they participated in a group assessment process to test for ‘behaviourial competencies’. Part of this selection process involved singing and dancing. A group of women aged between 35 and 60 argued that this was indirect discrimination against them because of their age.
They claimed that the process was geared towards younger applicants and a higher proportion of the younger applicants were able to comply with the requirement.
They had a false start in 2004, when they were not able to prove their case because they didn’t have the figures to show what proportion of younger to older people got through to the next round in the selection process.
When they reapplied in 2005, they were able to show that a disproportionate number of people under 35 were selected. They argued that this was because the assessment panel was made up of young people who saw young people as more suitable employees than older people.
They pointed out that the members of the panel had not been trained to assess the suitability of applicants regardless of age. Furthermore, the airline had not checked whether older people who were suitable were rejected.
The court was persuaded by these arguments and said that the panel had applied stereotypical beliefs about the attributes of younger people as against older people. The amount of compensation payable is still being assessed.
The golden rule
So you think you know that women are better at the job you are seeking to fill. Or that older people are more mature and responsible than younger ones. These are stereotypes and it may be true that more women than men or more older people than young one’s have the attributes you are looking for.
You could never say, however, that all women or all older people are better than men and young people for the job. If you use a stereotype to decide who to employ, not only could you be discriminating against the others, you could be losing the best person for the job.
Non discriminatory selection practices involve deciding what the job requirements are, and what attributes a person will need to meet the job requirements. Sometimes, race or sex or whatever will be a necessary job requirement and, if so, you can apply to the Anti-Discrimination Board for an exemption. In most cases, however, these things are not relevant.
You might find that a 25 year old applicant is more mature than a 55 year old. It is the quality you are looking for, not the age, sex, race, disability etc. of the applicants.
It’s in everyone’s interests to try to look past stereotypical beliefs and to assess people as individuals with individual strengths and weaknesses.
