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The Act defines family responsibility as being responsible for the care of another person, whether or not that person is a dependant but does not include someone who is paid to care for that person.
Family status means the status of being a relative of a particular person. Being a relative can mean by blood, marriage, affinity or adoption and includes someone wholly or mainly dependent on a particular person, or a member of that person’s household.
Direct family responsibility or family status discrimination occurs when a person is treated unfairly because of their family responsibility or status, compared to another person without that family responsibility or status, in the same or similar circumstances.
Indirect family responsibility or family status discrimination is when a requirement, condition or practice that is the same for everyone has an unfair effect on someone because of their family responsibility or status, and is unreasonable in the circumstances.
Where does the protection apply?
Under the Act it is unlawful to discriminate against a person because of their family responsibility or status in certain areas of public life, including:
- Employment - in some instances
- Application forms
There are some instances where it is not unlawful to discriminate against a person because of their family responsibility or status, and these exceptions include:
If an individual or organisation relies upon an exception under the Act when a complaint is made against them, they must justify the use of that exception to the Commissioner for Equal Opportunity.
- Domestic workers within private households
- Bona fide educational benefits, including concessions
- Rights or privileges granted to a person with a particular family responsibility or family status
- Measures intended to meet special needs
- Accommodation provided for employees
- Identity of a relative - where collusion would result in business disadvantage
- Orders of courts and tribunals
- The provision of charitable benefits
- Voluntary bodies - admissions and benefits
- The ordination of priests or ministers of religion.
Organisations must ensure they provide a working environment and services that are free from family responsibility and status discrimination and they must take all reasonable steps to prevent it from happening or they may be held responsible for their employees’ actions.
A person causing, instructing, inducing, helping or permitting another person to do something unlawful is the same as doing it, for the purpose of the Act.
Examples of family responsibility discrimination
An educational institution did not accept the need to care for a sick child as a valid reason for a student being unable to meet an assignment deadline.
An employee with a child was required to work at times that were incompatible with her child care arrangements, although her employer could have been flexible without there being a detriment to the business.
After being employed by the same company for ten years, an employee’s wife was diagnosed with an illness that required intermittent hospitalisation and he took time off work to care for her. During an interview for an internal promotion his wife’s illness was raised and he did not receive the promotion.
Examples of family status discrimination
A woman was refused employment because she was married to a man with a criminal conviction.
A man was refused employment because a family member was already employed by the same organisation.
New directors took over a company that had been established by a husband and wife team, then sacked the wife after she separated from her husband.
Making a complaint
A person who believes they have been discriminated against because of their family responsibilities or family status can lodge a complaint with the Commissioner. The onus of proof lies with the person making the complaint.
The incident or incidents you are including in your complaint must have occurred within the 12 months previous to the date you lodge your Complaint Form.
In some circumstances the Commissioner may rule there is good reason, or good cause, to include incidents that occurred more than 12 months before the Complaint Form is lodged.