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Perspective

Not All Ailments are Protected Attribute in Discrimination Law

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The test for determining whether direct discrimination occurred is twofold. First, you must consider whether the employee has a protected attribute. The following attributes are protected in all jurisdictions:

  • age
  • disability/impairment
  • pregnancy
  • breastfeeding
  • gender
  • sexual orientation
  • marital/domestic partnership status
  • race.

Second, you must consider whether the employee was treated less favourably because of the protected attribute. The alleged discriminator must have direct knowledge of the protected attribute at the relevant time for this connection to be established.

In EY v The Store [2021] ICQ 6, an employee was dismissed after his employer observed him with his hands down his pants and assumed he was masturbating. The employee claimed he was scratching a rash caused by a medical condition, and alleged his dismissal on that basis amounted to direct discrimination. His claim failed as he was unable to prove he suffered from a rash at the relevant time and in any event the rash he described did not constitute an ‘impairment’ under anti-discrimination legislation. Even if the employee had proven his rash was a protected attribute, there was no evidence the decision-maker terminated his employment because of his rash.

Lessons

  • Protected attributes vary across jurisdictions. For example, employment activities are only protected in Victoria. Political beliefs/activities are protected in all jurisdictions save for New South Wales and South Australia.
  • There is no need to prove the alleged discriminator had intent or motive to discriminate, but it may be relevant in determining whether there was a connection between the treatment and the protected attribute.
  • If the alleged discriminator is aware a protected attribute exists but not of its nature or extent, and this information is readily accessible (e.g. medical records on file), this may be sufficient to establish direct knowledge (see Wiggins v Department of Defence Navy (2006) 200 FLR 438).

Written by Nes Demir

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