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Anti-Discrimination Law - Question 1

a. Ms. Carter can sue Stone & Co Accountants under Section 49 A of the law on grounds of discrimination on the basis of disability. Ms. Carter was suffering from tuberculosis and was admitted to the hospital. Later when she returned to work situations were made difficult for her and she was forced to resign. She also faced various forms of discrimination at work. The definition of discrimination on grounds of disability includes treating a person less favorably than in usual circumstances or in case of a person who is not suffering from the disability and requiring the person to comply with such circumstances which persons without the disability have greater position to comply with1. SCA can also be sued on grounds of discriminating against a person with disability at work with respect to conditions of work and depriving from benefits on similar grounds and limiting access to opportunities. Ms. Carter was allocated tasks of demeaning nature and subject to performance management and criticisms which did not occur before her illness. She was also pressurized to resign and offered a separation package in order to force her to accept resignation. These are clear instances of creating unfavorable circumstances and depriving of benefits and opportunities which are related to Section 49 D. Therefore, Carter can bring charges against SCA in regard to the situation she faced and sue them under Section 49 A and 49 D. The claims can be established under any court of law or tribunal and SCA will be punishable for the same.

b. As per this case Carter has to file a complaint under Section 87 A of the law. She is entitled to make the complaint on her own. She has to make the complaint in writing to the President of the Anti-discrimination board which can be send through post or by facsimile to any office of the board as stated under Section 89 and 89 A3. However, it is under the sole discretion of the president to accept this complaint or to decline it under Section 89 B. Acting in accordance with the law the president will generally accept such a complaint or he may accept it in parts as deemed necessary by him. If the president declines such a complaint it will be on grounds of non-accordance with regulations of the act. It is also suggested that Carter file the complaint as soon as possible because the president might decline it if twelve months have crossed. Other reasons why the president may decline the complaint can be if the manner of the complaint made is against law for which the complainant will have to undergo penalty or if the president thinks that the person has not made the complaint themselves. The president gives a notice of acceptance or decline for the complaint on which this procedure will be completed. The decision of the president cannot be reviewed under any tribunal all of which is stated under Section 89 B. It is suggested that Carter file the complaint as soon as possible and as per the prescribed regulations to get justice in her case.

Anti-Discrimination Law - Question 2

a. Amy Philips can sue Chris under Section 28B of the Sex discrimination act, 1984 which states that it is unlawful for an employer to sexually harass an employee4. Sexual harassment is meant any sort of sexual approach which is unwelcome in nature or asking for any sexual favours. Apart from this engaging in any practice or activities or any other unwelcome conduct of sexual nature is considered under this act. In this situation, Chris obtained sexually explicit photos of Amy’s sister and stored them in his briefcase which can be considered an act of sexual misconduct. Thus, if Amy wants, she can take action against Chris in this regard. Section 28 D and 28 E is also applicable in this regard because it is unlawful for the member of an organization to sexually harass another member of that organization. As per Section 28 E, it is unlawful for the person operating an employment agency to sexually harass another member of the agency. Section 28 G is also applicable to Chris as it states that it is unlawful for a person to sexually harass another person in the course of that person providing goods or services to the first person. Amy being an employee of Chris’s company can sue him under all these clauses since she is working in his company and he has conducted an act of sexual harassment against her. Chris’s act of obtaining sexually explicit photos of Amy’s sister was one of sexual misconduct and it is punishable under law

b. There are cases of exemptions by the Australian Human rights commission in case the person in writing submits an application to the commission for the same themselves under Section 445. However, it entirely depends on the Commission’s discretion to grant the exemption to the person. The commission can also extend this exemption if a request is made before its expiration. An exemption will not in any case last more than five years. Thus, Chris has to make an application to the Australian human rights commission in writing for the exemption of his punishment in case Amy brings charges against him under the clauses of Section 286. It is completely at the discretion of the commission to grant him this exemption. Chris’s exemption can be further extended upon request and will not, in any case, exceed five years. It is most likely that the commission would not grant such exemption to Chris in lieu of its duties and responsibilities of acting in compliance with this act and protecting sexual rights of various parties under Section 48. If Chris is not satisfied with the decision of the commission, he can request a review by the Administrative appeals tribunal under Section 45. But the commission can also intervene in proceedings of any court of law in matters related to the Act as stated under Section 48 (Bennett, 2016). Due to the nature of the crime committed by Chris which is related to sexual misconduct he is likely to be punishable in this case.

Anti-Discrimination Law - Question 3

a. Mr. Lachlan can exercise his right to freedom of speech and lawful accommodation under the constitution of Australia. This allows him to display any “symbol of pride” that he may deem fit which does not have any statistical or actuarial data of being offensive or intuitive or causing harm. Therefore, in lieu of the harassment caused by the discriminator, namely Ms Birchmore, his an offence of unlawful discrimination under the Anti-Discrimination Act 1977 with respect, particularly to, Sexual discrimination Act 1984 Division 2 Clause 23 that refers to the prohibition of discrimination on the basis of gender identity or sexual orientation in relation to the accommodation7. As Ms Birchmore have harassed Mr Lachlan for display of the rainbow coloured pride flag on his balcony and has shown hostile behavior towards him and his housemate on several occasions on the grounds of Mr Lachlan's sexual orientation. This is an expression of social and individual discrimination towards the LGBTQ community members and is an unlawful activity under the Sexual Discrimination Act 1984 where discrimination on the basis of sexual orientation for majority of causes is strictly prohibited which includes prohibition of discriminatory behavior in terms of accommodation and conditons of accommodation. Ms Brichmore has committed unlawful discrimination by subjecting the Mr Lachlan to detriment in relation to accommodation occupied by him, by threatening him to evacuate, threatening to complain to the real estate agent and broker and harrassed him for supposedly offending her religious beliefs by displaying a symbol of LGBTQ pride.

The discriminator here has caused grievances to the victim where the victim has been subjected to direct discrimination from the perpetrator, who in any other case would not have exhibited the behaviour that caused grief and distress to the victim, thus, resulting in a direct discriminatory behaviour resulting from the victim’s characteristics, namely, homosexuality. In light of this activity, Mr Lachlan would be fully within his rights for protection against discrimination on the basis of sexual orientation and can bring in his claim on Ms Birchmore’s under the a forementioned clause in the constitution. He can claim to be a victim of discrimination on the basis of his sexual orientation which had caused him to be a subject of detrimental behaviour from on the part of Ms Birchmore.

b. Under the Anti-Discrimination Act 1977 with respect, particularly to, Sexual discrimination Act 1984 Division 2 Clause 23 Mr. Lachlan can bring the aforementioned claims against his neighbor and discriminator, Ms. Birchmore. He can seek the remedy of this claim under the same Act and clause in any nearby state or territory law operating facility8. The discriminator shall get convicted under this Act or the law of the state or territory given the both are in compliance. However, there is not a provision in the Act’s subsection 11, i.e operation of State and Territory laws that further objects of relevant international instruments, that states that a person can be convicted under this act, in the same manner, more than once. However, if the state or territory law operations are not in compilation with the statutes of the act, the aggrieved can file a complaint under the Australian Human Rights Commission Act 1986 seeking redressal for his grievances. However, such a complaint can only be lodged when the given law code of the state and territory law operations do not meet the criteria of the unlawful behaviour stated in this act or does not further the objects of a relevant international instrument deals with a matter dealt with by this Act.

Anti-Discrimination Law - Question 4

Under the Age Discrimination Act 2004, the behavior Karen Sanchez’s boss can be held under unlawful activity specifically pertaining to Part 3 clause 14 of the act, i.e, direct discrimination on the basis of age9. The discrimination that is done to the aggrieved here is based on the ground of age and the activity has the following characteristics:

(a) the discriminator, in this case the employer of the aggrieved, has displayed less than favourable behavior and consideration inorder to employ more young employees which he thinks are going to be beneficial to his business. There is no statistical or actuarial data to support his claim, so he instead is making the workplace and the conditions of the workplace of Karen Sanchez unsuitable to her needs of childcare which the employer is well aware of.

(b) the discrimination is based on the grounds of age and not factual data. The discriminator wants to employ younger employees, thus, making the situations of working unfavorable for older women with children who have special needs for childcare.

Childcare needs are symptomatic and characteristic in women of Karen Sanchez's age and till date such an adjustment in her time schedule was not a problem. The discrimination that led to Karen Sanchez changing her job was the change in her job conditions that arose not from her specific childcare and time schedule needs, but from her age per se which did not fall under her employer's current bias towards hiring younger female employees. It is possible that the employer would have exhibited the same behavior if any other female of Karen Sanchez's age worked under him in place of Karen Sanchez and the employer would exempt from exhibition of such behavior if some younger female employee was working in place of Karen Sanchez. This has led to the employer imposing inconvenient and unfavorable work schedules to the aggrieved which under the Act, division 2, i.e, discrimination of work, pertaining to clause 18, according to the second point, where it is an unlawful act on the part of an employer or a person purporting the act of the employer to discriminate the existing benefits and employee access to job opportunities and growth on ground of age, thus, subjecting the employee to detriment in their employment conditions.

The Act, however, does not have provisions for the unlawful activities to be defined as offences under the constitution neither can they be part of a civil action. However, Karen Sanchez can seek the redressal of her grievance under the Australian Human Rights Commission Act 1986 making a claim or complaint under the provision of direct discrimination pertaining to the Age Discrimination Act 2004. Karen Sanchez can also report the discriminator if the discriminator further engages in the act of victimization if the discriminator, in this case, her employer, engages in detrimental conduct to her against her consent due to the following causes10:

  • Help from Australian Human Rights Commission Act 1986 have been sought for the redressal of her grievances
  • If she has or will bring the aforementioned allegations under the proceedings of the Australian Human Rights Commission Act 1986
  • Id she plans to or has already given evidential documents to a person exercising or performing any power or function under this Act or the Australian Human Rights Commission Act 1986; or
  • For attending or proposing to attend any conferences held by Australian Human Rights Commission Act 198611; or
  • If she reasonably asserts or proposes to assert, her rights of protection against discrimination aom grounds of age as provided under this Act or the Australian Human Rights Commission Act 1986; or
  • If she makes allegations probing that the discriminator has done an unlaw3 act that by reason of the provision of Part 4 of this Act.

This act of victimization can make the perpetrator subject to a penalty of imprisonment of up to six months.

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