(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. (2) Nil. (3) Refer to the Discrimination, Harassment, Vilification and Victimisation Prevention Policy. (4) Refer to the Discrimination, Harassment, Vilification and Victimisation Prevention Policy. (5) Unlawful discrimination occurs when a person is treated less favourably than someone else or has adverse actions taken against them because of: (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. (9) Unlawful discrimination also occurs if you are treated unfairly or harassed because of one of your relatives, friends or work colleagues', pregnancy, race, age, marital or domestic status, homosexuality, disability, transgender status or carers' responsibilities. (10) Discrimination based on the above attributes is unlawful only if it happens in: (11) Discrimination can be either direct or indirect. (12) Both forms of discrimination are unlawful. (13) Direct discrimination occurs when a person or group is specifically excluded from an opportunity because of one of the personal attributes listed above. (14) Direct discrimination includes: (15) 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. (16) 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. (17) Unlawful harassment is any unwelcome conduct, verbal or physical, which has the intent or effect of creating an intimidating, hostile or offensive educational or work environment, and which happens because of a person's sex, pregnancy, race or ethno-religious background, marital status, age, sexual preference, transgender status or disability. (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) 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. (20) For example, harassing a person because they are homosexual 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. (21) Unlawful harassment can include: (22) The offensive behaviour does not have to be repetitive: a single incident can constitute harassment. (23) 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. (24) 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. (25) 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. (26) 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. (27) Occurs when in the context of your employment you are treated unfairly or harassed (in employment only) because you are responsible for caring for or supporting adults or children, or others think you are. (28) 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). (29) Occurs when you are treated unfairly or harassed because you are lesbian or gay, or someone thinks you are lesbian or gay, for example telling a homophobic joke in front of your colleagues or fellow students. (30) Occurs when you are treated unfairly or harassed because of your particular marital or domestic status, for example, because you are single, or married, or living in a de facto relationship. (31) Occurs when you are treated unfairly or harassed or not given the same opportunities because you are pregnant, for example not offering you a work/study opportunity because you are pregnant. (32) Occurs when you are treated unfairly or harassed because of your race, colour, ethnic background, ethno-religious background, descent or nationality, for example denying you a promotion because of your racial background. (33) Occurs when you are treated unfairly or harassed because you are a woman or because you are a man, for example not granting you the same opportunities as some one of the opposite sex. (34) Occurs when you are treated unfairly or harassed because you are transgender or others think you are transgender. You are counted as transgender if you live, have lived, or want to live as a member of the opposite gender to your birth gender (sex). Source: NSW Anti- Discrimination Board (35) 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) (36) For example not employing a potential employee because of their marital status is taking unlawful "Adverse Action" against them under the Fair Work Act. (37) 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) (38) Vilification is generally any act: (39) To work out if vilification has occurred, check if: (40) 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. (41) 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. (42) 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. (43) 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. (44) This means managers and supervisors have a responsibility to: (45) All employees and students have a responsibility to: (46) 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: (47) For employees: (48) For students: (49) Australian Human Rights Commission Act 1986Discrimination, Harassment, Vilification and Victimisation Prevention Guidelines
Section 1 - Purpose and Context
Section 2 - Definitions
Section 3 - Policy Statement
Section 4 - Procedures
Section 5 - Guidelines
Part A - What is unlawful discrimination?
Part B - Areas of Discrimination
Part C - Direct and Indirect Discrimination
Direct Discrimination
Indirect Discrimination
Part D - Types of Unlawful Discrimination in NSW
Unlawful Harassment is a Type of Unlawful Discrimination
Age Discrimination
Breastfeeding Discrimination
Carers' Responsibilities Discrimination
Disability Discrimination
Homosexual Discrimination
Marital or Domestic Status Discrimination
Pregnancy Discrimination
Race Discrimination
Sex Discrimination
Transgender (Transsexuality) Discrimination
Adverse Action
Part E - What is vilification?
Part F - What is victimisation?
Part G - Your responsibilities as managers and supervisors
Part H - Your responsibilities as employees and students
Part I - Where can you get assistance and support?
Part J - Which laws are relevant?
Federal Laws
State Laws
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