Delving Deeper into Discrimination Law

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Blog Image 26.05.14One of the goals of the 2011 Political Declaration on HIV/AIDS was the elimination of stigma and discrimination against people living with and affected by HIV through promotion of laws and policies that ensure the full realisation of all human rights and fundamental freedoms. Discrimination Law is one of the formal legal mechanisms that aims to eliminate HIV discrimination and stigma.

The key piece of discrimination legislation in Queensland is the Anti-Discrimination Act 1991 which not only provides protection against unlawful discrimination but also sexual harassment, vilification, victimisation and unlawful requests for information. PLHIV are afforded protection under Discrimination Law as HIV is classified as an impairment which is a listed attribute. The law recognises two forms of discrimination; direct and indirect. If you wish to make a claim for discrimination, it must be made within a year of the discrimination unless there are reasonable grounds for the delay.

Direct Discrimination

There are 3 elements to prove a direct discrimination claim. The person who believes they have been discriminated against must show:

  1. An attribute that is covered by the Anti-Discrimination Act (HIV is classified as an impairment which is one of the 16 attributes which are protected)
  2. That they have been treated less favourable than someone without the attribute and that the attribute is a substantial reason for the treatment
  3. The discrimination must have occurred in an area of activity covered by the Act which are activities relating to:
    1. Work and work related
    2. Education
    3. Goods and services
    4. Superannuation and insurance
    5. Disposal of land (eg. the sale of a property)
    6. Accommodation
    7. Club membership and affairs
    8. Administration of state laws and programs
    9. Members of local government/authority

Indirect Discrimination

Indirect discrimination is where a particular situation appears to be the same for everyone, but in fact discriminates against people with HIV. Indirect discrimination is a little harder to spot out than direct discrimination and is usually the form most encountered by PLHIV.  As it is not clear-cut and is dependent on a myriad of different factors, it often goes by un-noticed.

There are 4 elements which must be met for a successful indirect discrimination claim and include where a person imposes or proposes to impose:

  1. A term, condition or requirement
  2. That a person with an attribute (HIV) can’t comply with, and
  3. That a higher proportion of people without the attribute can comply with, and
  4. That is not reasonable.

A term includes a policy, condition, requirement, rule or practice which appears fair as it applies to everyone equally but a closer look shows that certain people with an attribute are disadvantaged. Whether a term in unreasonable depends on the circumstances of the case; including:

a)      The consequences of failure to comply with the term, and

b)      The cost of alternative terms; and

c)       The financial circumstances of the person who imposes, or propose to impose, the term.

Can certain discrimination be lawful?

Yes.

Some situations that would considered discriminatory fall under ‘exemptions’ under the Act.

The reasoning given for these is for the balancing of societal needs and the protection of vulnerable populations.

The exemptions under the Act include:

a)      Welfare measures (such as pensioner and student travel discounts)

b)      Equal opportunity measures

c)       Workplace health and safety

d)      Public health

e)      Genuine Occupational Requirement (person applying or doing a job must meet certain requirements which are essential for that position)

f)       Education single sex or religious schools

g)      Exemptions granted by the Tribunal (a person or company can apply for a 5 year exemption to do something that would otherwise be unlawful under the Act)

 

Unlawful requests for information

A closely related protection for PLHIV under the Anti-Discrimination Act is the prohibition against asking unnecessary questions.

A person cannot ask for information that could lead to discrimination. The most common situations where unnecessary questions are asked are in job interviews and looking for rental accommodation.

A person can ask what seems to be an unnecessary question if they can prove that it is relevant to the particular situation. Often, people believe they need to know your HIV status when in fact they do not.

If you believe you have been subjected to HIV-related discrimination you can speak to the Advocacy Officer at QPP at squigley@qpp.org.au/ 07 3013 5555 or contact the Anti-Discrimination Commission directly on 1300 130 670.