Under anti-discrimination legislation, it is irrelevant that a person is unaware that their conduct is discriminatory and/or unfavourable. So too is the person’s motive.
This means that a comment, flippantly made or ill-considered, can have repercussions both for the perpetrator of the conduct (who can be the subject of legal proceedings) as well as the employer, who may be found vicariously liable for the offending conduct.
Some recent cases demonstrate this
Last year, an employer was held to have discriminated against an employee that was forced to take sick leave, when concerns grew about her mental health. It had been reported to the employee’s manager that the employee had been discussing a range of conspiracy theories, including the existence of a large hadron collier that 'will shut down the atmosphere', that the Earth is flat, and that fallen angels came to Earth and bred with humans to create giants.
The Manager advised the employee that as a result of her conversations and to ensure the employer’s duty of care to the employee and her co-workers and clients, the employee was directed to take sick leave until she obtained a medical clearance.
While the Manager had the best of intentions in wanting to ensure the employee was fit to continue working, the NSW Civil and Administrative Tribunal was satisfied that the Manager assumed the employee had a disability (being mental illness) and directed the employee to take leave because of that assumed disability.
While there was no financial loss to the employee (her sick leave was re-credited to her), the Tribunal found that the direction to take leave was a 'substantial disadvantage' and, at a minimum, resulted in an injury to the employee’s feelings. The employer was found liable for the Manager’s conduct and was required to pay $20,000 for pain and suffering.
More recently, an employee claimed that she had been discriminated against on the ground of sex, after her complaints about sexual harassment and other inappropriate conduct were dismissed by a Senior Manager.
In responding to the complaint, the Manager said words to the effect:
'You are working in a man’s working environment and you need to expect that kind of unwanted attention'.
'You look tired; maybe you are perceiving it wrong. Maybe you are being over sensitive'.
When asked about the complaints process, the Manager also deflected and advised the employee to 'calm down'.
The Victorian Civil and Administrative Tribunal found that the Senior Manager’s advice constituted unfavourable treatment and was engaged in because of the employee’s sex. After finding both the Senior Manager and the employer liable for the conduct, the Tribunal awarded the employee $10,000 for non-economic loss.
It’s important that all employees, but particularly those with people management responsibilities, are fully aware of their obligations under anti-discrimination laws, and the exposures they may face personally if they fall foul of the laws. In a jurisdiction of uncapped damages and a trend of increasing compensation awards, this is not a place anyone wants to find themselves.