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The Law:
The Anti-Discrimination
Act 1977
The Anti-Discrimination Act 1977 (NSW) covers a range of different areas of discrimination.
This excerpt covers the basic information on discrimination and the workplace on the basis of:
1. Race
2. Sex
3. Marital status
4. Disability
5. Homosexuality
6. Age
1. What constitutes discrimination on the ground of race?
(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of race if, on the ground of the aggrieved person’s race or the race of a relative or associate of the aggrieved person, the perpetrator:
(a)treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race or who has such a relative or associate of a different race, or
(b) segregates the aggrieved person from persons of a different race or from persons who have such a relative or associate of a different race, or
(c) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons not of that race, or who have such a relative or associate not of that race, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.
(2) For the purposes of subsection (1) (a) and (b), something is done on the ground of a person’s race if it is done on the ground of the person’s race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race.
Discrimination against applicants and employees
(1) It is unlawful for an employer to discriminate against a person on the ground of race:
(a) in the arrangements the employer makes for the purpose of determining who should be offered employment,
(b) in determining who should be offered employment, or
(c) in the terms on which the employer offers employment.
(2) It is unlawful for an employer to discriminate against an employee on the ground of race:
(a) in the terms or conditions of employment which the employer affords the employee,
(b) by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or
(c) by dismissing the employee or subjecting the employee to any other detriment.
(3) Subsections (1) and (2) do not apply to employment for the purposes of a private household.
2 What constitutes discrimination on the ground of sex?
(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of sex if, on the ground of the aggrieved person’s sex or the sex of a relative or associate of the aggrieved person, the perpetrator:
(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of the opposite sex or who does not have such a relative or associate of that sex, or
(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons of the opposite sex, or who do not have such a relative or associate of that sex, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.
(1A) For the purposes of subsection (1) (a), something is done on the ground of a person’s sex if it is done on the ground of the person’s sex, a characteristic that appertains generally to persons of that sex or a characteristic that is generally imputed to persons of that sex.
(1B) For the purposes of this section, but without limiting the generality of this section, the fact that a woman is or may become pregnant is a characteristic that appertains generally to women.
(2) For the purposes of subsection (1), the circumstances in which a person treats or would treat another person of the opposite sex are not materially different by reason of the fact that the persons between whom the discrimination occurs:
(a) are a woman who is pregnant and a man, or
(b) are not of the same marital status.
Discrimination against applicants and employees
(1) It is unlawful for an employer to discriminate against a person on the ground of sex:
(a) in the arrangements the employer makes for the purpose of determining who should be offered employment,
(b) in determining who should be offered employment, or
(c) in the terms on which the employer offers employment.
(1A) Nothing in subsection (1) renders unlawful discrimination by an employer against a woman on the ground of sex if, at the date on which the woman applied to the employer for employment or, where the employer interviewed the woman in relation to her application for employment, at the date of the interview, the woman is pregnant.
(2) It is unlawful for an employer to discriminate against an employee on the ground of sex:
(a) in the terms or conditions of employment which the employer affords the employee,
(b) by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or
(c) by dismissing the employee or subjecting the employee to any other detriment.
(2A) Nothing in subsection (2) (c) renders unlawful discrimination by an employer against a woman on the ground of sex in respect of the dismissal by an employer of a woman who is pregnant if, at the date on which the woman applied to the employer for employment or, where the employer interviewed the woman in relation to her application for employment, at the date of the interview, the woman was pregnant, unless, at that date, the woman did not know and could not reasonably be expected to have known that she was pregnant.
(3) Subsections (1) and (2) do not apply to employment:
(a) for the purposes of a private household,
(b) where the number of persons employed by the employer, disregarding any persons employed within the employer’s private household, does not exceed 5, or
(c) by a private educational authority.
(4) For the purposes of subsection (3) (b), a corporation shall be regarded as the employer of the employees of any other corporation which, with respect to the firstmentioned corporation, is a related body corporate within the meaning of the Corporations Act 2001 of the Commonwealth.
3 What constitutes discrimination on the ground of marital status?
(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of marital status if, on the ground of the aggrieved person’s marital status or the marital status of a relative or associate of the aggrieved person, the perpetrator:
(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different marital status or who does not have such a relative or associate of that marital status, or
(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons of a different marital status, or who do not have such a relative or associate of that marital status, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.
(1A) For the purposes of subsection (1) (a), something is done on the ground of a person’s marital status if it is done on the ground of the person’s marital status, a characteristic that appertains generally to persons of that marital status or a characteristic that is generally imputed to persons of that marital status.
(2) For the purposes of subsection (1), the circumstances in which a person treats or would treat another person of a different marital status are not materially different by reason of the fact that the persons between whom the discrimination occurs are not of the same sex.
(3) (Repealed)
Discrimination against applicants and employees
(1) It is unlawful for an employer to discriminate against a person on the ground of marital status:
(a) in the arrangements the employer makes for the purpose of determining who shall be offered employment,
(b) in determining who should be offered employment, or
(c) in the terms on which the employer offers employment.
(2) It is unlawful for an employer to discriminate against an employee on the ground of marital status:
(a) in the terms or conditions of employment which the employer affords the employee,
(b) by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or
(c) by dismissing the employee or subjecting the employee to any other detriment.
(3) Subsections (1) and (2) do not apply to employment:
(a) for the purposes of a private household,
(b) where the number of persons employed by the employer, disregarding any persons employed within the employer’s private household, does not exceed 5, or
(c) by a private educational authority.
(4) For the purposes of subsection (3) (b), a corporation shall be regarded as the employer of the employees of any other corporation which, with respect to the firstmentioned corporation, is a related body corporate within the meaning of the Corporations Act 2001 of the Commonwealth.
4 What constitutes discrimination on the ground of disability?
(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of disability if, on the ground of the aggrieved person’s disability or the disability of a relative or associate of the aggrieved person, the perpetrator:
(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or
(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have such a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.
(2) For the purposes of subsection (1) (a), something is done on the ground of a person’s disability if it is done on the ground of the person’s disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability.
(3) For the purposes of, but without limiting, this section, the fact that a person who has a disability of or relating to vision, hearing or mobility has, or may be accompanied by, a dog which assists the person in respect of that disability, is taken to be a characteristic that appertains generally to persons who have that disability, but nothing in this Act affects the liability of any such person for any injury, loss or damage caused by the dog.
(4) A reference in this section to persons who have a disability (“the particular disability”) is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability.
Discrimination against applicants and employees
(1) It is unlawful for an employer to discriminate against a person on the ground of disability:
(a) in the arrangements the employer makes for the purpose of determining who should be offered employment, or
(b) in determining who should be offered employment, or
(c) in the terms on which the employer offers employment.
(2) It is unlawful for an employer to discriminate against an employee on the ground of disability:
(a) in the terms or conditions of employment which the employer affords the employee, or
(b) by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or
(c) by dismissing the employee, or
(d) by subjecting the employee to any other detriment.
(3) Subsections (1) and (2) do not apply to employment:
(a) for the purposes of a private household, or
(b) where the number of persons employed by the employer, disregarding any persons employed within the employer’s private household, does not exceed 5, or
(c) by a private educational authority.
(4) Nothing in subsection (1) (b) or (2) (c) renders unlawful discrimination by an employer against a person on the ground of the person’s disability if taking into account the person’s past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person’s performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability:
(a) would be unable to carry out the inherent requirements of the particular employment, or
(b) would, in order to carry out those requirements, require services or facilities that are not required by persons without that disability and the provision of which would impose an unjustifiable hardship on the employer.
(5) For the purposes of subsection (3) (b), a corporation is taken to be the employer of the employees of any other corporation which, with respect to the firstmentioned corporation, is a related body corporate within the meaning of the Corporations Act 2001 of the Commonwealth.
5. What constitutes discrimination on the ground of homosexuality?
(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of homosexuality if, on the ground of the aggrieved person’s homosexuality or the homosexuality of a relative or associate of the aggrieved person, the perpetrator:
(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who he or she did not think was a homosexual person or who does not have such a relative or associate who he or she thinks was a homosexual person, or
(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who are not homosexual persons, or who do not have such a relative or associate who is a homosexual person, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.
(2) For the purposes of subsection (1) (a), something is done on the ground of a person’s homosexuality if it is done on the ground of the person’s homosexuality, a characteristic that appertains generally to homosexual persons or a characteristic that is generally imputed to homosexual persons.
Discrimination against applicants and employees
(1) It is unlawful for an employer to discriminate against a person on the ground of homosexuality:
(a) in the arrangements the employer makes for the purpose of determining who should be offered employment,
(b) in determining who should be offered employment, or
(c) in the terms on which the employer offers employment.
(2) It is unlawful for an employer to discriminate against an employee on the ground of homosexuality:
(a) in the terms or conditions of employment which the employer affords the employee,
(b) by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or
(c) by dismissing the employee or subjecting the employee to any other detriment.
(3) Subsections (1) and (2) do not apply to employment:
(a) for the purposes of a private household,
(b) where the number of persons employed by the employer, disregarding any persons employed within the employer’s private household, does not exceed 5, or
(c) by a private educational authority.
(4) For the purposes of subsection (3) (b), a corporation shall be regarded as the employer of the employees of any other corporation which, with respect to the first mentioned corporation, is a related body corporate within the meaning of the Corporations Act 2001 of the Commonwealth.
6 What constitutes discrimination on the ground of age?
(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of age if, on the ground of the aggrieved person’s age or the age of a relative or associate of the aggrieved person, the perpetrator:
(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who is not of that age or age group or who does not have such a relative or associate who is that age or age group, or
(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who are not of that age or age group, or who do not have such a relative or associate who is that age or age group, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.
(2) For the purposes of subsection (1) (a), something is done on the ground of a person’s age if it is done on the ground of the person’s age or age group, a characteristic that appertains generally to persons who are that age or age group or a characteristic that is generally imputed to persons who are of that age or age group.
(3) In this section:
associate of a person means any person with whom he or she associates, whether socially or in business or commerce, or otherwise.
relative of a person means:
(a) any person to whom the person is related by blood, marriage, affinity or adoption, or
(b) any person who is wholly or mainly dependent on, or a member of the household of, the person.
Discrimination against applicants and employees
(1) It is unlawful for an employer to discriminate against a person on the ground of age:
(a) in the arrangements the employer makes for the purpose of determining who should be offered employment, or
(b) in determining who should be offered employment, or
(c) in the terms on which employment is offered.
(2) It is unlawful for an employer to discriminate against an employee on the ground of age:
(a) in the terms or conditions of employment that are afforded to the employee, or
(b) by denying or limiting access to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or
(c) by dismissing the employee or subjecting the employee to any other detriment.
(3) This section does not apply to employment for the purposes of a private household.
