Comparison of Diversity Equal Employment Opportunity and Affirmative

Comparison of Diversity, Equal Employment Opportunity and Affirmative Action Glynis Wattus Manager, Equity & Diversity Unit University of Newcastle

DIVERSITY A comprehensive organisational and managerial process for developing an environment that maximises the potential of all employees by valuing diversity. Diversity refers to human qualities that are different from our own and those of groups to which we belong, but are manifested in other individuals and groups. Dimensions of diversity include, but are not limited to:

DIVERSITY n Sex n Marital status n Disability n Sexual preference n Transgender status n n Race, colour, descent, national or ethnic origin, etho-religious background Carers’ responsibilities

DIVERSITY n Age n Family responsibilities n Political conviction n Religious belief n Pregnancy or potential pregnancy

EQUAL EMPLOYMENT OPPORTUNITY A term used by the federal and state governments to refer to employment practices that ensure nondiscrimination based on the dimensions listed above. The principle behind EEO is that everyone should have access to opportunities. The NSW government has established a legislative framework that promotes EEO for four designated groups: § Aboriginal and Torres Strait Islander people § People with a disability § than People who first spoke a language other English § Women

AFFIRMATIVE ACTION Affirmative action is one aspect of the federal and state governments’ effort to ensure equal employment opportunity. Members of EEO groups may not have had equal access to job opportunities or to training and development for reasons such as past discrimination or prejudice, different educational experience, or being locked into low opportunity jobs. Affirmative action strategies aim to redress these past disadvantages and improve employment outcomes for people from EEO groups. The principle of Affirmative Action acknowledges that equal treatment might not produce equal outcomes; differential treatment may be required to achieve real equity.

SUMMARY DIVERSITY n n inclusive of all groups focuses on developing an environment that maximises the potential of all employees by valuing diversity interpersonally and institutionally LEVEL PLAYING FIELD business necessity given workforce trends n broader than ethnicity, race, and gender n n not legally mandated AFFIRMATIVE Targeted outreach to disadvantaged ACTION n groups helps prevent discrimination n n legally mandated measures good faith efforts in making progress in opportunities for designated minorities and women n EQUAL EMPLOYMENT OPPORTUNITY n eliminates discrimination in organisational policies and practices provides access and opportunity - no one excluded from participation n n legally mandated Diverse productive workforce n more equitable and accessible work environment n inclusive environment where all employees valued n work environment free from discrimination n

LEGISLATION Federal n n n Racial Discrimination Act 1975 Sex Discrimination Act 1984 Human Rights and Equal Opportunity Commission Act 1986 Disability Discrimination Act 1992 Equal Opportunity for Women in the Workplace Act 1999

L E G I S L A T I O N (Cont’d) State § NSW Anti-Discrimination Act 1977 Concepts n n Direct and indirect discrimination Reasonable accommodation/adjustment Vicarious liability Affirmative action and special measures

DIRECT DISCRIMINATION § treating people differently because of their sex, race, and so on

DIRECT DISCRIMINATION (Cont’d) Example 1 You refuse to employ people over the age of 40 because you believe that older workers are too set in their ways and inflexible. You are making an assumption that all older workers are the same. This would be direct age discrimination.

DIRECT DISCRIMINATION (Cont’d) Example 2 You refuse to employ a woman with young children because you are sure that this will make her unreliable and inflexible about staying back later some evenings. You are making an assumption that a woman who has young children is bound to be unreliable and/or unable to work late. This would be direct discrimination on the ground of family responsibilities.

INDIRECT DISCRIMINATION Imposing an apparently neutral condition or requirement for access to employment, education etc. which one group or class of people is much less likely to be able to meet.

INDIRECT DISCRIMINATION (Cont’d) Example 1 An employer who says they need a person over 180 cm (6 feet) tall to do a job is likely to end up disadvantaging more women than men, and more of some ethnic groups than others. This is because women and people from some shorter ethnic groups are less likely to be this height than men or people from other taller ethnic groups. If it is possible to show that the job does not need someone 180 cm tall, or that it could easily be adapted to suit people who aren’t that tall, then shorter women and people from shorter ethnic groups, could claim indirect sex discrimination or indirect race discrimination.

INDIRECT DISCRIMINATION (Cont’d) Example 2 You decide that everyone in your team must speak and understand English fluently so you can be sure they are able to follow essential health and safety rules. This policy would obviously exclude more people of non-English speaking backgrounds than people of English speaking backgrounds from working with you.

INDIRECT DISCRIMINATION (Cont’d) Example 2 (Cont’d) Someone excluded under this policy would be able to claim indirect race discrimination if they could show that your policy was “unreasonable”. For example, it might be considered unreasonable if there were other reasonable ways of ensuring that employees followed essential health and safety rules - for example, adequate training, and/or translating important signs into several languages, and/or using internationally understood picture signs.

HARASSMENT Complaint heard by the NSW Equal Opportunity Tribunal Mr Daniels alleged that he was harassed and discriminated against by some of his co-workers at the Hunter Water Board because they believed he was homosexual. He said that over a number of years the harassment had escalated, and management had not taken any action to prevent it.

H A R A S S M E N T (Cont’d) For example, he was called names like “gay bar freak” and “poof”; graffiti about him appeared in the male toilets; someone announced over the public address system that he was a faggot; his car tyres were slashed; and he was beaten up. The Tribunal decided that he had indeed been harassed on the basis of his presumed homosexuality. They ordered the Hunter Water Board to pay him general damages of $12, 500 and asked the Anti-Discrimination Board to help them conduct an anti-discrimination/harassment education campaign for their employees.

REASONABLE ACCOMMODATION / ADJUSTMENT Your organisation must provide any facilities or services a person with a disability needs to enable them to do a particular job - for example, particular aids or workplace adjustments, or changes to hours of work or the way in which the job is done. Your organisation must do this unless you can demonstrate that doing this would cause “unjustifiable hardship” - for example, the cost of making the adjustments or providing the aids would be more than your organisation can afford, or the changes required would cause unjustifiable, negative impact on other employees.

REASONABLE ADJUSTMENT Examples of workplace reasonable adjustments include: providing synthetic speech output on a computer for an employee with a vision impairment; n providing voice input on a computer for an employee with restricted hand function or vision impairment; n

REASONABLE ADJUSTMENT (Cont’d) n n n installing a ramp to allow an employee using a wheelchair access to work premises and facilities provided for employees such as washroom and lunch facilities; improving the lighting at a workstation for an employee with low vision; providing a hand rail on a long corridor for an employee with multiple sclerosis;

REASONABLE ADJUSTMENT (Cont’d) n n providing an employee with diabetes some private space for injecting insulin, such as a sick room or empty office; and providing a two-drawer rather than four-drawer filing cabinet so that an employee who uses a wheelchair can reach all material.

VICARIOUS LIABILITY The employer is also legally responsible when any employee behaves in a discriminatory or harassing way - unless they can show that they took “reasonable steps” to prevent the discrimination or harassment from happening. This type of legal liability is called “vicarious liability”. For example, in relation to harassment, the employer could be liable for harassment committed between employees, if they (or one of their managers or supervisors), knew about it (or should have know about it), and didn’t do anything to stop it, or prevent it from happening again.

PERSONAL n LIABILITY Individuals can be held legally responsible for their own unlawful behaviour and can have amounts awarded against them in court and tribunal hearings. This can occur even where the employing organisation has successfully made out the defence of having taken “all reasonable steps”.

PERSONAL LIABILITY (Cont’d) Examples of recent damages awards made jointly against individual perpetrators and the employing company include: $24, 508 for sexual harassment [Dippert v Luxford and Vrachnas Betabake Pty Ltd, Human Rights and Equal Opportunity Commission, No. H 95/97, Cmr R Graycar, 18 July, 1996] n $55, 000 for racial abuse and harassment [Rugema v J Gadsen Pty Ltd (t/a Southcorp Packing) (1997) EOC 92 -887] n

PERSONAL LIABILITY (Cont’d) n $46, 120 for sexual harassment [Iturbe v Yuen and Bamboo Garden Chinese Restaurant, Human Rights and Equal Opportunity Commission, No. H 98/61, Cmr Johnston, 27 July 2000] n $18, 000 for sexual harassment to be paid jointly by the individual perpetrator and the company, and an additional $7, 000 to be paid by the company for victimisation [Leslie v Lincoln Graham and Roger Graham and Associates, HREOC, H 99/31, Cmr Innes, 21 July 2000]

INTERESTED IN KNOWING MORE? n Visit eoonline. uow. edu. au http: //staff. uow. edu. au/eeo/eoonline n Contact The Equity and Diversity Unit Phone: 4921 6547 Website: http: //www. newcastle. edu. au/services/equity