Australia: New Victorian equal opportunity legislation commences

All businesses must now take reasonable and proportionate measures to eliminate discrimination, sexual harassment and victimisation as far as possible. This means businesses will need to be proactive about implementing steps to seek to prevent or remove discriminatory practices. This new positive obligation is a considerable shift from the previous legislation. The reasonable and proportionate measures needed to satisfy the positive duty will vary depending on the size, resources, nature, and business and operational priorities of the organisation as well as the practicability and cost of the measures in question. Examples of the kind of action that would satisfy this obligation could extend to a business undertaking an assessment of its compliance with the Act and developing a compliance strategy.

Under the new Act the concept of direct discrimination is simplified and there is no longer the requirement to establish "less favourable" treatment. Rather direct discrimination is defined as treating, or proposing to treat, a person unfavourably on the basis of a protected attribute. Similarly, an employer will have engaged in indirect discrimination if it unreasonably imposes, or intends to impose, a requirement, condition or practice that has the effect of disadvantaging persons with an attribute. The person claiming discrimination no longer needs to prove that a substantially higher proportion of people without the particular attribute can comply with a requirement, condition or practice. Further, under the Act, the person imposing the requirement, condition or practice, will be required to prove that it is reasonable in the circumstances. The effect of these changes is that it is now likely to be easier for an employee to establish direct or indirect discrimination.

All businesses must now make reasonable adjustments for persons with impairments or disabilities in employment, education and where providing goods and services. Making reasonable adjustments requires an employer, educational authority or service provider to balance the need for change with the effort and expense involved in making the change, as well as the ultimate benefit that it will serve. A failure to implement reasonable adjustments will not be discriminatory where the person would not have been able to perform the genuine requirements of the position, participate in education or access the services despite any reasonable adjustments.

The new dispute resolution process is intended to be an entirely voluntary service for parties involved in a dispute about discrimination, sexual harassment or victimisation. Parties may withdraw from the process at any time and make an application to the Victorian Civil and Administrative Tribunal (VCAT), which will continue to mediate and hear complaints.