Discrimination and Sexual Harrassment Complaints

Discrimination and Sexual Harassment Complaints -
Your Rights and Responsibilities

index
Making a complaint. Who is your complaint against? What was the basis of the discrimination? What happened? Is there any other information that might help? What else have you done? What do you want? Responding to a complaint. Resolving a complaint. Conciliation. Settlement.

The Queensland Anti-Discrimination Act 1991 prohibits sexual harassment, which is any form of unwelcome sexual attention that is offensive, intimidating or humiliating. It also prohibits discrimination on the basis of:

sex
marital status
pregnancy
parental status
breastfeeding
age
race
impairment
religion
political belief or activity
trade union activity
lawful sexual activity
association with, or relation to, a person who has any of the above attributes

Unlike sexual harassment, which is against the law in all circumstances, discrimination is only against the law if it covers one or more of the grounds listed above and if it occurs in any of the following areas:

employment
education
goods and services
accommodation
superannuation and insurance
disposal of land
club membership and affairs
local government
administration of State laws and programs

Not all discrimination is against the law. The legislation is very specific. Particular exemptions mean that not all forms of discrimination are against the law in all circumstances. The ADCQ can provide more detailed information and advice about the law and exemptions.

The Anti-Discrimination Act outlines certain rights and responsibilities. It gives all of us the right to be treated fairly and to take action if unlawful discrimination or harassment occurs. It also places responsibilities on all of us to ensure that discrimination and sexual harassment are minimised or prevented.

The Act establishes processes for making a complaint about discrimination or sexual harassment and for resolving complaints as quickly as possible, usually through conciliation.

Anyone who unlawfully discriminates against a person can be complained about and may be liable under the law. An employer or organisation can also be liable for discrimination or harassment done by their employees or agents. To minimise such vicarious liability reasonable steps must be taken to prevent discrimination and harassment.

Importantly, the Anti-Discrimination Act also prohibits victimisation. Victimisation happens when someone who has been complained about threatens or harasses others involved in the complaint. This is a serious matter and strong penalties can be imposed for victimisation. If you think you are being victimised you should contact the ADCQ immediately.

MAKING A COMPLAINT

Complaints can only be dealt with by the ADCQ if they are covered by the Anti-Discrimination Act. The ADCQ can also reject complaints if investigation shows that they are frivolous, without substance or vexatious.

The ADCQ can answer any questions you have about the law and talk with you about ways that you might be able to deal with the situation. One of these ways might be to make a formal complaint if you believe you have been unlawfully discriminated against or sexually harassed. Complaints can be submitted up to a year after the time of the discrimination or harassment.

A formal complaint must be in writing and can be in any language. A complaint can also be submitted on video or audio tape or the ADCQ can take a statement from you if you have difficulty writing. The Legal Aid Commission may help you write your complaint if you meet their means and merit test. Your trade union can also make a complaint on your behalf or a friend, community legal service or solicitor may help you write a complaint. The ADCQ can also help with community and sign language interpreters. Standard forms for submitting a complaint are also available.

Your complaint must provide certain information to allow the ADCQ to assess it, to provide guidance for any further investigation and to help the conciliation process. When preparing your complaint you should give your name, address and telephone number and think about the following questions.

Who is your complaint against?
You need to tell the ADCQ the name and address (and, if possible, telephone number) of the person and/or organisation who you believe discriminated against you or sexually harassed you. For example, was it your employer or somebody else you work with, a shop or business, a real estate agent, an educational institution, a club, a pub or hotel, or somebody else?
What was the basis of the discrimination?
You need to tell the ADCQ what it was about you that you believe caused the discrimination. For example, was it your sex, age, race, sexuality, religious beliefs, political convictions, impairment or disability, marital or parental status, or because you were pregnant or breastfeeding? Or was it sexual harassment? This helps explain why you think what happened was discrimination and should therefore describe what was said or done that makes you believe you were treated unfairly or differently to others.
What happened?
You need to tell the ADCQ about the event/s or incident/s which have led you to believe that you were discriminated against or sexually harassed. The ADCQ needs to know what happened, when and where it occurred (including dates if possible), and who you think is responsible for the discrimination or harassment, and their relationship to you. You also need to tell the ADCQ what happened as a result of the events or incidences and what effect it had on you. You should try to explain what disadvantage, loss or harm you suffered as a result of the discrimination or sexual harassment. For example, were you denied a job or a promotion, were you unable to obtain or access a certain service, were you excluded from a building, event or function of some kind, did you experience stress, humiliation or embarrassment, or did you experience a loss of income or other material losses?
Is there any other information that might help?
You need to tell the ADCQ if there is anything else that might support your complaint. For example, are there any people who may have seen or heard the discrimination or harassment, or any letters, documents or other relevant materials or information? This information is used to assess your complaint and may affect whether it is accepted or rejected by the ADCQ. It also provides a starting point for any further investigation of your complaint.
What else have you done?
You need to tell the ADCQ if you have taken any other steps about your complaint, including any attempts to resolve it. For example, have you talked to others about your complaint, such as a trade union, your supervisor or boss, the ombudsman, lawyer, community organisation, the Industrial Relations Commission, the police or other organisations? If you have you need to provide details to the ADCQ, including the name of the person and/or organisation you dealt with and a brief description of what happened or is happening.
What do you want?
You need to think about what results you want from making your complaint. These can include a formal apology, an explanation, a promise that it won’t happen again, a change of policy or practice, training and information, or financial or other compensation for damages. These outcomes are generally decided through the process of conciliation.

RESPONDING TO A COMPLAINT

If a complaint is made against you the process also protects your rights to fair treatment. You are entitled to know about the complaint and to respond to its claims. The ADCQ will provide you with the substance of the complaint, explain why the complaint is accepted and allow you a fair opportunity to give your side of the story. The ADCQ may also conduct further investigation into the complaint.

First of all you will be asked to give a written reply that responds fully to the claims made in the complaint. Your response will also be provided to the person making the complaint. You may then be asked to participate in conciliation to try and resolve the complaint.

It is not necessary to have legal representation but you may do so if you wish. You can also seek information and advice from other organisations such as industry groups. If you have any questions or wish to discuss the process or provide further information you can contact the relevant ADCQ conciliator at any stage.

RESOLVING A COMPLAINT

Once a complaint has been accepted as falling under the Act the role of the ADCQ is to investigate and try to get the full story from everybody involved. The ADCQ then tries to help everyone work out a solution which both sides can agree on. This is called conciliation and is an informal, impartial and private process. Complaint and conciliation services of the ADCQ are free.

Conciliation

Conciliation tries to resolve complaints by bringing together the people involved in a dispute to talk through the problem and try to fix it in some way.

The ADCQ employs conciliators to help with the complaint process. Conciliators are impartial and do not take sides, impose a settlement or decide guilt or innocence. Their role is to ensure that the complaint process is run fairly and that everyone involved is given a fair chance to have their say.

Usually a conciliation conference is held but because conciliation is flexible an agreement may be reached by telephone or letters. Conciliation conferences are quite informal and are held in private. If the complaint is referred to the Anti-Discrimination Tribunal the conciliation discussions cannot be revealed. This allows everyone involved to speak frankly and openly. Conciliators are also required by law to maintain confidentiality.

Anybody involved in conciliation can consult with others such as solicitors or industry or community organisations at any time during the complaint process. A specialist public library which can greatly assist with information is also maintained by the ADCQ at its Brisbane office and a range of resources can be accessed at regional offices in Cairns, Townsville and Rockhampton.

If the conciliator agrees, supporters or advisers may be brought to a conciliation conference. Although you do not need a lawyer you can engage one if you wish. You can also be supported by an advocate, a friend or family member, or an organisation such as a union or employer or business association.

The conciliation process, especially if entered into in good faith by all concerned, provides real opportunities for the satisfactory resolution of discrimination and sexual harassment complaints. Often simply talking about the issues can be a relief to everybody involved in the complaint. Conciliation can bring about greater understanding and help inform and educate everybody involved about their rights and responsibilities under the law.

Settlement

Most conciliation conferences result in settled complaints. A settlement is usually a written agreement which everybody involved in the complaint agrees to sign. It is important that everybody involved in conciliation has an idea of the kind of outcome they want when they go into a conciliation conference, including whether they should settle, and if so, on what terms.

Settlements can include payment of damages, withdrawal of the complaint, an apology, changes in policies and practices, or job appointment, reinstatement or promotion.