Discrimination Laws and Exceptions

Discrimination

• Anti-discrimination acts outlaw certain forms of discrimination.
• Exceptions exist where discrimination is permissible.
• If no exceptions apply, individuals may seek an exemption.
• Examples of discrimination include disability, race, sex, homosexuality, transgender, age, harassment, and sexual harassment.
• It is permissible to discriminate based on sex when it is a job requirement (e.g., hiring a woman to clean female toilets).
• If an exception is not met, an exemption is required to favor a specific group.
• Targeting a job for a particular group requires evidence of addressing past or present discrimination, especially if race isn't essential for the role.

Disability Discrimination

• Discrimination based on current, previous, or potential disability is illegal.

Race Discrimination

• Indirect race discrimination is unlawful. It occurs when a rule or requirement disadvantages individuals of a specific race more than others, unless proven reasonable in all circumstances.

Harassment

• Workplace bullying involves offensive, intimidating, humiliating, or threatening behavior directed at a staff member or group, related to work.
• Bullying is often repeated and systematic, although a severe single incident can qualify.
• It's unwelcome and unsolicited.
• The recipient(s) perceive the behavior as offensive, intimidating, humiliating, or threatening.
• A reasonable person deems the behavior offensive, intimidating, humiliating, or threatening.
• Legitimate managerial actions to direct and control work are not classified as bullying.

Anonymous Complaints of Bullying

• While anonymity is discouraged, anonymous complaints need assessment.
• Individual matters may not be pursued, but an organizational response might be necessary.

Assessing a Bullying Complaint

• Complaints must be treated seriously, confidentially, and acted upon promptly.
• Prompt action demonstrates that bullying is unacceptable and aligns with a manager's duty of care under OH&S legislation.

Investigating Bullying

• Investigations must be fair, impartial, and professionally conducted.

Sexual Harassment

• Sexual harassment encompasses unwanted sexual advances, unwelcome requests for sexual favors, or other unwelcome conduct of a sexual nature.
• It occurs when a reasonable person would expect the behavior to cause offense, humiliation, or intimidation.

Discrimination and Transmissible Infections

• Working in healthcare is possible despite having a transmissible infection, depending on the type and ease of transmission.
• Disclosure is based on the risk of infection to the patient, not the infection itself.
• Nurses with blood-borne infections may have to disclose if performing exposure-prone procedures involving body fluids, confined body cavities, or situations with poor visibility and risk of sharps injuries.
• These restrictions often affect surgeons, operating theatre nurses, and dentists.
• Professional nursing bodies provide information on procedures nurses can or cannot perform.

Patient with a Transmissible Infection

• Health care practitioners have a duty to maintain patient confidentiality.
• They generally don't owe a "duty to the world at large."
• Except for limited statutory exceptions, doctors lack a duty to rescue strangers.
• However, health care providers may owe a duty of care to individuals beyond their patient if their actions could reasonably harm those individuals.
• Providers could be held liable for injuries or harm caused to third parties due to their acts and omissions.

Disclosing Information about a Patient's Transmissible Infection

• Disclosure is lawful if required by other laws, the individual provides express or implied consent, or it's deemed in the public interest (difficult to categorize).

Restriction of Liberty

• Any restrictions on an individual's liberty or decision-making capacity must be limited to public protection.
• Liberty cannot be restricted unless immediate protection is warranted.