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Discrimination, Harassment, Vilification and Victimisation Prevention Guidelines

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Section 1 - Purpose and Context

(1) These guidelines provide information to assist employees and students understand their rights and responsibilities in relation to unlawful discrimination, unlawful harassment, vilification and victimisation. These guidelines should be read in conjunction with the Discrimination, Harassment, Vilification and Victimisation Prevention Policy.

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Section 2 - Definitions

(2) Nil.

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Section 3 - Policy Statement

(3) Refer to the Discrimination, Harassment, Vilification and Victimisation Prevention Policy.

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Section 4 - Procedures

(4) Refer to the Discrimination, Harassment, Vilification and Victimisation Prevention Policy.

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Section 5 - Guidelines

Part A - What is unlawful discrimination?

(5) Unlawful discrimination occurs when a person is treated less favourably than someone else or has adverse actions taken against them because of:

  1. their race, colour, descent or national or ethnic origin, (as defined in the Federal Racial Discrimination Act 1975 and the NSW Anti-Discrimination Act 1977);
  2. their sex, gender identity, sexual orientation, relationship status, pregnancy or breastfeeding, (as defined in the Federal Sex Discrimination Act 1984 and the NSW Anti-Discrimination Act 1977);
  3. their disability, (as defined in the Federal Disability Discrimination Act 1992 and the NSW Anti-Discrimination Act 1977);
  4. their age, (as defined under the Federal Age Discrimination Act 2004 and the NSW Anti-Discrimination Act 1977);
  5. their carer's or family responsibilities (as defined in the NSW Anti-Discrimination Act 1977).

(6) Unlawful discrimination can result from beliefs and attitudes people may have about the characteristics and behaviour of members of a group that is different to them.

(7) Unlawful discrimination can be overt or subtle, verbal, non-verbal or physical.

(8) Unlawful discrimination, unlawful harassment, vilification and victimisation may be committed by students and employees and may be aimed at students and/or employees.

Part B - Areas of Discrimination

(9) Discrimination based on the above attributes is unlawful only if it happens in:

  1. Employment
  2. Education
  3. Provision of goods and services
  4. Accommodation, and
  5. Other areas defined by anti-discrimination laws.

Part C - Direct and Indirect Discrimination

(10) Discrimination can be either direct or indirect.

(11) Both forms of discrimination are unlawful.

Direct Discrimination

(12) Direct discrimination occurs when a person or group is specifically excluded from an opportunity because of one of the personal attributes listed above.

(13) Direct discrimination includes:

  1. A selection panel seeking information about a woman's family commitments, but not seeking the same information about a man;
  2. Refusing to employ Indigenous people or people whose first language is not English due to their racial or linguistic background;
  3. Telling a student that they cannot enrol in a course of study because of their disability.

Indirect Discrimination

(14) Indirect discrimination occurs when rules, practices and decisions are applied to people equally and appear to be neutral, when in fact the rule or practice significantly reduces the chance of members of some groups obtaining an opportunity.

(15) For example, indirect discrimination occurs when access to training and developmental opportunities is conditional upon a staff member being employed on a full-time basis. If the majority of part-time staff are women, such a requirement would have a disproportionate impact on that group.

Part D - Types of Unlawful Discrimination in NSW

(16) Unlawful harassment is a type of unlawful discrimination.

(17) Unlawful harassment occurs when a person is made to feel intimidated, insulted or humiliated because of their race, colour, national or ethnic origin; sex (including intersex), gender identity, pregnancy, breastfeeding; relationship status; carers' or family responsibility; age; disability; religion; sexual orientation; trade union activity; or some other characteristic determined under discrimination or human rights legislation. (see Discrimination, Harassment, Vilification and Victimisation Prevention Guidelines for further explanation and examples).

(18) Unlawful harassment is a type of unlawful discrimination because it is behaviour that affects you less favourably than someone else who does not have the trait on which the harassment is based.

(19) Unlawful harassment includes any conduct, including verbal, physical, in-person, via electronic communications or otherwise which has the intent or effect of creating an intimidating, hostile or offensive educational or work environment.

(20) Harassment not based on these traits is against the University's policy and the Code of Conduct but it does not constitute a breach of anti-discrimination or human rights legislation.

(21) For example, harassing a person because of their sexual orientation is unlawful. Harassing someone for no particular reason is against the University's policy and the Code of Conduct but it is not against anti-discrimination or human rights law.

(22) Unlawful harassment can include:

  1. verbal abuse or comments that put down or stereotype people;
  2. derogatory or demeaning jokes intended to offend on the basis of stereotyped characteristics;
  3. offensive communications (such as posters, letters, e-mails, SMS, faxes, screen savers, web sites) that intend to offend on the basis of a stereotype;
  4. offensive telephone or electronic mail or other computer system communications that focus on a particular trait;
  5. insults, taunting, name calling, innuendo or bullying on the basis of an anti-discrimination attribute;
  6. persistent or intrusive questions or comments about an individual's personal life;
  7. orientation activities that involve sexual, sexist, racist, homophobic, transphobic or other discriminatory behaviour;
  8. non-verbal behaviour such as whistling, staring and leering;
  9. engaging in behaviour which is embarrassing, humiliating or intimidating because of a person's particular trait;
  10. derogatory comments about race, religion, sexual orientation, gender identity, gender expression, or customs;
  11. teasing or offensive language and behaviours based on a stereotype; and
  12. mocking customs or cultures.

(23) The offensive behaviour does not have to be repetitive: a single incident can constitute harassment.

(24) The important criterion of unlawful harassment is the less favourable effect of the behaviour on the person it is directed against. Unlawful harassment can occur even if the behaviour is not intended.

(25) Harassment not based on the anti-discrimination attributes listed in clause 5 is not unlawful but is against the University's policy and the Code of Conduct.

Age Discrimination

(26) Occurs when you are treated unfairly or harassed because of your age. For example forcing you to retire at the government retirement age or not given the same opportunities because you are young.

Breastfeeding Discrimination

(27) Occurs when you are treated unfairly or harassed because you are breastfeeding, expressing milk or making arrangements to do so. For example denying you participation in training because you are breastfeeding.

Carers' or Family Responsibilities Discrimination

(28) Occurs when in the context of your employment you are treated unfairly or harassed because you are responsible for caring for a dependent child or step-child or supporting an adult relative such as an immediate family member, spouse or former spouse, parent or step-parent, brother or sister, step-brother or step-sister, grandparent or step-grandparent, grandchild or step-grandchild. This applies equally to employees of all genders, and covers birth, adoptive and step families including same-sex partnered families. For example, a man being refused to leave work early to pick up his ill child because it is assumed males do not have direct carer responsibilities, or at a job interview a woman being not selected for the position because she mentioned having caring responsibilities for her ageing father.

Disability Discrimination

(29) Occurs when you are treated unfairly or harassed because you have a disability, or someone thinks you have a disability. It is also against the law to treat you unfairly or harass you because you had a disability in the past, or because you will or may acquire one in the future. Disability includes physical, intellectual, psychiatric, sensory, neurological, and learning disabilities, physical malformation or disfigurement, temporary or chronic medical condition, behaviour that is a symptom or manifestation of a disability and any organism capable of causing disease (for example, Hep B or HIV). For example, a student with an Anxiety Disorder is denied an opportunity to participate in a student leadership program based on an assumption that they couldn't cope with the extra responsibilities.

Sexual Orientation Discrimination

(30) Occurs when you are treated unfairly or harassed because of your sexual orientation. Sexual orientation refers to a person's sexual identity in relation to the gender/s to which they are attracted, including whether they are attracted to individuals of the same sex, different sex or both. This includes people who are lesbian, gay, or bisexual. Sexual Orientation Discrimination also covers unfair treatment or harassment because of an assumption of your sexual orientation An example of Sexual Orientation Discrimination is telling a homophobic joke in front of your colleagues or fellow students, or discouraging a student or staff's same sex partner to attend a university event where opposite partners are encouraged to attend.

Relationship Status Discrimination

(31) Occurs when you are treated unfairly or harassed because of your particular relationship status, for example, because you are single, married, living in a same sex or opposite sex de facto relationship. For example, a university not allowing special consideration for a student based on their partner's serious illness because the partner was of the same sex.

Pregnancy Discrimination

(32) Occurs when you are treated unfairly or harassed or not given the same opportunities because you are pregnant. For example not allowing you an upcoming promotion opportunity because you are pregnant.

Race Discrimination

(33) Occurs when you are treated unfairly or harassed because of your race, colour, ethnic background, ethno-religious background, descent or nationality. For example racist comments made in a lecture based on racial stereotypes or prejudices.

Sex Discrimination

(34) Occurs when you are treated unfairly or harassed because of your sex and/or gender identity including whether you are a woman, a man, or are intersex. The term 'sex' refers to physical characteristics associated with biological sex. Intersex means having physical, hormonal or genetic features which are not wholly female or male, or a combination of both female and male, or neither female or male. Examples of Sex Discrimination could include a senior leader continually commenting on women's unsuitability to executive life, or a student being denied an opportunity to nominate for the Student Representative Council on the basis of being intersex.

Non-Binary Gender Discrimination

(35) Occurs when you are treated unfairly or harassed because you identify with a gender other than male or female. This can cover a diverse range of gender identities, including transgender and other non-binary genders. A non-binary gender means identifying your gender as other than male or female, including but not limited to transgender, intersex, gender queer, gender fluid, bi-gender. Transgender is identifying to a gender other than the one you were assigned at birth. Intersex means having physical, hormonal or genetic features which are not wholly female or male, or a combination of both female and male, or neither female or male. (For further terminology explanations, go to the University's webpages on sexuality and gender diversity.) An example of non-binary gender discrimination could include an organisation's forms not including a gender option other than male or female, or a transgender person being prohibited from wearing clothes that match their preferred gender identity.

Adverse Action

(36) Occurs when an action is taken to detrimentally treat an employee in their employment or a potential employee in recruitment and selection because of their race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origins. (Section 351 Fair Work Act 2009)

(37) For example not employing a potential employee because of their marital status is taking unlawful "Adverse Action" against them under the Fair Work Act.

(38) If a claim is made to Fair Work Australia by an employee or potential employee that unlawful Adverse Action has been taken against them for one of the reasons set out above, then the onus of proof will rest with the University to show that the action was not taken for an unlawful discriminatory reason. (Fair Work Australia guidance note - 17 December 2009)

Part E - What is vilification?

(39) Vilification is generally any act:

  1. That happens publicly as opposed to privately; and
  2. That could incite (encourage, urge or stir up) others to hate, have serious contempt for, or have severe ridicule of you or a group of people, because of race, colour, nationality, descent, ethnic, ethno-religious or national origin, homosexuality (lesbian or gay), HIV or AIDS status or transgender status. This includes vilification because you are thought to be a lesbian, gay or transgender, or to have HIV or AIDS.

(40) To work out if vilification has occurred, check if:

  1. the behaviour happened in public;
  2. the behaviour could have incited hatred, serious contempt or severe ridicule;
  3. the behaviour involve an acceptable type of free speech.

Part F - What is victimisation?

(41) The law in NSW provides protection to a person that has made, intends to make or has helped someone else make a complaint of discrimination, harassment or vilification covered by the NSW Anti-Discrimination Act 1977. This includes people who have agreed to be witnesses in relation to a complaint.

(42) An example of victimisation includes being dismissed because you have complained about unlawful discrimination to your employer, you have provided a statement in support of an allegation of sexual harassment, or you have mentioned to others that you are considering making a complaint of unlawful harassment.

Part G - Your responsibilities as managers and supervisors

(43) Managers and supervisors have a duty to prevent unlawful discrimination and unlawful harassment, vilification and victimisation in the work and learning environment and may be held responsible for these unlawful behaviours unless all reasonable steps have been taken to prevent or eliminate the unlawful harassment.

(44) It is the role of managers and supervisors to identify, prevent and redress potential problems. Therefore, any manager or supervisor who observes unlawful behaviours akin to unlawful discrimination and unlawful harassment, vilification and victimisation has a duty to take action until the unlawful behaviour ceases. This duty exists even in the absence of a complaint.

(45) This means managers and supervisors have a responsibility to:

  1. Undertake EO Online and keep their knowledge in this area up dated by completing EO Online as a re-fresher;
  2. monitor the teaching, learning and working environment to ensure that acceptable standards of conduct are observed at all times;
  3. model appropriate behaviour themselves and, if required, seek advice and assistance from the Equity and Diversity Unit in managing staff and students where behaviour may be in breach of this policy;
  4. promote this policy within the learning and working environment;
  5. treat all complaints seriously and confidentially and take immediate action to resolve the matter;
  6. take steps to prevent victimisation occurring against the person who makes a complaint; and
  7. refer complaints to the Complaints Resolution Unit where:
    1. they are unable to resolve the situation;
    2. there is a conflict of interest;
    3. the complaint is particularly serious or complex and requires formal investigation.

Part H - Your responsibilities as employees and students

(46) All employees and students have a responsibility to:

  1. comply with the Discrimination, Harassment, Vilification and Victimisation Prevention Policy;
  2. offer support to anyone who is being unlawfully discriminated, unlawfully harassed, vilified or victimised and advise them on where to seek assistance and support; and
  3. maintain confidentiality of information provided during an investigation of a complaint. Employees and students need to be aware that spreading gossip or rumours may expose them to a defamation action.

(47) If an employee or student witnesses that a person is being unlawfully discriminated, unlawfully harassed, vilified or victimised they can help by offering support to that person. This can be done by:

  1. refusing to join in with any unlawfully discriminating or harassing, vilifying or victimising behaviour;
  2. offering to act as a witness if the person decides to report the incident;
  3. backing them up or supporting the person to say no to the unlawful behaviour.

Part I - Where can you get assistance and support?

(48) For employees:

  1. Employees Assistance Program
  2. Equity and Diversity Unit
  3. Office of Human Resources
  4. Office of Aboriginal and Torres Strait Islander Employment and Engagement

(49) For students:

  1. Student Welfare Service
  2. Student Counselling Service
  3. Head, Student Disability Service
  4. Student Association

Part J - Which laws are relevant?

Federal Laws

State Laws