Discrimination 101
These are some terms you may come across when talking about discrimination. Some of these terms are words you may already know, but they have special definitions in discrimination law.
What is discrimination?
Discrimination means being treated less favourably than other people based on an attribute. An attribute is a characteristic someone has, such as age, gender, ethnicity or so on. Discrimination laws usually contain a list of attributes that are covered by that law. Less favourably means being treated worse or in an unfair way.
Example: if a business serves men but refuses to serve women, that’s a type of discrimination. The business treats women less favourably than men by refusing to serve women.
Discrimination can be direct discrimination or indirect discrimination:
- Direct discrimination is when a person with an attribute is treated worse than a person without that attribute because they’ve been directly targeted for having the attribute.
Example: someone is fired from a job for being gay. The person being fired is being directly targeted because of their sexual orientation. If the person wasn’t gay, they wouldn’t have been fired. - Indirect discrimination is when there is a condition that applies to everyone but only makes things worse for people with an attribute. The result is that people without the attribute don’t suffer because of the condition, but people with the attribute do.
Example: a school is open to everyone, but the buildings all have stairs and no wheelchair ramps. A student in a wheelchair won’t be able to access the building as easily as a student who doesn’t use a wheelchair. The student in a wheelchair might miss out on school because they can’t access the building, but students who don’t need wheelchair ramps won’t miss out.
What is an attribute?
Discrimination laws usually prohibit discrimination because of certain attributes. Laws may also prohibit discrimination because of characteristics associated with certain attributes. Finally, laws may prohibit discrimination because of a stereotype about people who have a certain attribute.
- An attribute (or protected attribute) is a broad category that a group of people can share. Some attributes are things people can’t change, such as age or ethnicity. Some attributes are things like religion or political beliefs. Something all attributes have in common is that people who are in the minority or are less powerful based on that attribute might face persecution or poor treatment from society. The purpose of discrimination laws is to protect people from poor treatment based on attributes.
Example: the Queensland Anti-Discrimination Act prohibits discrimination based on a long list of attributes, including gender identity. Gender identity means a person’s individual experience of gender, which might not match the sex they were assigned at birth or the sex other people perceive them as. So, for example, a trans woman might be discriminated against based on her gender identity because she is transgender, because she is perceived as a woman, because she is not perceived as a woman, or some combination of these. - A characteristic is a trait associated with people who have a certain attribute. Sometimes, these traits are shared by everyone or almost everyone who has a certain attribute, but not always.
Example: a name is more common in people of a certain ethnicity. Not everyone belonging to that ethnicity has the name. People who don’t belong to that ethnicity might also have the name. - A stereotype is a popular belief that people who have an attribute all share a characteristic, whether or not that belief is true.
Example: a name is commonly associated with people of a certain ethnicity. Many people believe the name is common in people of that ethnicity. This belief might be true or false.
It can be illegal to discriminate against someone based on a belief that they have an attribute, even if that belief is false or mistaken. The belief might be based on characteristics or stereotypes, or it might not be.
Example: a landlord refuses to rent to a man wearing a pink shirt because the landlord thinks all men who wear pink shirts are gay. This is discrimination even if the man wearing a pink shirt is not gay. This is because the landlord believed the man wearing a pink shirt was gay, and that was the reason for refusing to rent to him.
What is vilification?
Vilification is a type of discrimination that involves saying or doing something in public that encourages others to harm a person or group of people. In Queensland, it is illegal to vilify a person or group of people because of their race, religion, sex, sex characteristics or gender identity.
Example: a TV ad contains claims that transgender people are dangerous and shouldn’t be allowed in public. This is a type of vilification. The ad’s intention is to encourage hatred of a group of people based on their gender identity.
Vilification must be a public act. A public act is an act that can be witnessed by someone other than the target of the act. If nobody except the person or group of people being targeted witnesses an act, it is not vilification.
Example: a person texts racial slurs to someone they work with. Nobody except the sender and the recipient sees the messages. The messages might be a type of discrimination, but they are not vilification. This is because no other members of the public can see the text messages.
There are exceptions to the law against vilification for acts which have a reasonable purpose. A reasonable purpose is something that’s in the public interest, like education or research.
Example: a teacher plays a documentary in a History class as part of a lesson. The documentary shows violence against a group of people based on their ethnicity. The teacher is not trying to encourage the class to be violent to people of that ethnicity. This is not vilification because there is a reasonable purpose for the teacher to play the documentary.
What is bullying?
Bullying is behaviour in the workplace by a person or group of people which threatens the health and safety of another person or group of people. Behaviour must be repeated and unreasonable to count as bullying.
Example: a person messages their coworker, “you are useless at your job and should quit.” The person then repeats this to the coworker at a meeting. The coworker feels upset and unsafe at work afterwards. This may be bullying because the messages threaten the coworker’s health and safety.
Bullying might not be discrimination, but discrimination that happens at work might be bullying.
Example: a person is being bullied by a group of coworkers who regularly call her a mean name. The name isn’t related to her gender or any other attributes. The person hates coming to work because her coworkers won’t stop calling her the mean name. This is not discrimination, but it is bullying. If the name were related to the person’s gender or another attribute such as her ethnicity, it would be both discrimination and bullying.
What is sexual harassment?
Sexual harassment is unsolicited or unwelcome sexual behaviour that is offensive, intimidating or humiliating. The person who is upset by the sexual behaviour might be the target of the behaviour, or it might be another person.
Some common types of sexual harassment include:
- Physical harassment such as touching someone or brushing against them
- Verbal harassment such as commenting on or joking about someone’s body or sex life
- Sexual demands such as pressuring someone to go on a date or have sex
- Other sexual conduct such as indecent exposure, displaying inappropriate images in public or sexual phone calls and messages
If someone consents to the sexual behaviour, it is not sexual harassment. However, other people who did not consent to the sexual behaviour might be exposed to it. Those people may feel sexually harassed by the behaviour.
Example: a group of work friends tell each other sexual jokes in the office. The friends all consent to the sexual behaviour, so they are not being sexually harassed. Another coworker hears the sexual jokes and is offended. That coworker did not consent to the sexual behaviour, so they are being sexually harassed.
Sexual harassment can depend on people’s individual circumstances. These can include a person’s age, race, religion, gender and their relationship to the person engaging in the sexual behaviour.
Example: a worker in a shop is helping a customer try on some clothes. The worker makes a comment about how good the clothes look on the customer. This may or may not be sexual harassment depending on the customer’s age, gender, cultural background, how well they already know the worker or many other factors. Some customers may be offended by the comment, whereas some customers might not.
Where can I find out more?
The Queensland Human Rights Commission has lots of information around discrimination. Find their website here; QHRC : Discrimination
Spotting discrimination
It isn’t always easy to tell if you’ve seen or experienced discrimination. If you aren’t sure, these quick questions can help you identify whether a behaviour is discrimination, vilification, sexual harassment, bullying or something else.
Where did the behaviour happen?
Generally, discrimination laws may apply to behaviour that happens in public or that is related to a thing or place the public can access (such as a school, workplace, government department, real estate agency or business).
Example: a person’s job application is rejected because the employer doesn’t like people of their ethnicity. This is an example of discrimination. This is because the behaviour relates to employment and the workplace, which is a public area.
Discrimination laws may not apply to behaviour that happens in private or that is related to a thing or place the public can’t access (such as inside a private home or between two individuals who have a private relationship). However, just because something happens inside a private home, does not mean that discrimination laws don’t apply. Also, other laws may apply to this behaviour even if discrimination laws don’t apply.
Example: a plumber comes to a person’s house to do some work. The plumber then refuses to do the work because they see a pride flag on the wall. This would be discrimination even though the incident took place in a private home because the plumber is refusing to provide a service based on a protected attribute (sexual orientation or gender identity).
Example: a person breaks up with his partner because his partner displays feminine behaviours. It is not illegal to break up with a partner, so discrimination laws would not apply. However, if that person then posted on social media about the breakup and said abusive and derogatory things about his ex-partner’s feminine behaviours, that might be a type of vilification and discrimination laws might apply to the social media posts.
Was the behaviour because of a certain attribute?
Some behaviours aren’t always illegal but might become illegal if they’re done because of an attribute a person has.
Example: an employee is fired for poor job performance. The employee is non-binary, but this is not why they were fired. The employee’s gender identity is not related to their poor job performance. This is not discrimination. If the employee was fired for being non-binary, this would be discrimination.
If a person is treated less favourably for multiple reasons, this may or may not be discrimination. This depends on whether any of the reasons are related to an attribute that person has.
Example: a shop refuses to serve a person in a wheelchair five minutes before closing time. The shop generally doesn’t let people in five minutes before closing time, so this is not the only reason for refusing service. The shop then serves a person who isn’t in a wheelchair right after turning away the person in a wheelchair. This may or may not be discrimination. This is because the person’s wheelchair was not the only reason they weren’t served, but it might have been one of the reasons.
Example: an employee is fired for poor job performance. The employee is non-binary, and the employer says this is not why the employee was fired. However, the employee was not told about any performance issues until after complaining to their employer about a lack of gender-neutral bathrooms in the workplace. This may or may not be discrimination. This is because the firing may have been for the performance issues, but it may also have been in retaliation for the complaint about gender-neutral bathrooms. The employee and employer would both need to put together evidence to show that the employee’s non-binary gender identity was or wasn’t the reason why they were fired, such as a timeline of events or timestamped records of conversations.
Was the behaviour exempt from the law?
In some circumstances, an exemption for discrimination might apply to a behaviour. This means there is a legal reason why the behaviour is allowed, even though it wouldn’t usually be legal.
A common exemption is when an act is done to help a person or group of people who usually face discrimination. Even though one person or group gets better treatment as a result, discrimination laws may not apply.
Example: a university creates a scholarship for women. The scholarship is to encourage more women to study a degree that is usually male-dominated. Men can’t apply for the scholarship. Even though this is a type of sex-based discrimination, the purpose is to fix existing discrimination against women. The scholarship would likely be exempt from a discrimination claim.
Another common exemption is when it would have been very difficult or impossible for someone to treat someone in a non-discriminatory way. Even though some people are treated unfairly as a result, it would be unreasonable to expect everyone to be treated exactly the same.
Example: a business only employs workers who speak English. If a customer doesn’t speak English, the workers use an interpreter service so they can help the customer. A customer who speaks an uncommon language not covered by the interpreter service calls and the workers aren’t able to help. Even though the customer is being discriminated against based on their ethnicity, the business may be exempt from a discrimination claim. This is because it is likely difficult or even impossible for the business to find an interpreter service for certain uncommon languages.
