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Education Law Articles - Discrimination

 

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Student's discrimination claim puts school in a knot

A South African court recently handed down a decision in favour of a student who had been discriminated against due to her hairstyle.

The student claimed that her school unlawfully discriminated against her on the basis of her religion by forcing her to miss all her classes. The School had a code of conduct which specified that:

“hairstyle must be neat and short. No elaborate style (such as parting, shaven paths, steps, dyes, fizzes, dreadlocks and hairpieces) are allowed. Girls may have long hair or simple braids, but long hair must be tied back out of the face.”

The student, who was in grade 8 at the time, was not permitted to attend class as a result of her dreadlocks and would only be allowed to return once she had cut them off.

Her parents said that, as members of the religion of Rastafari, they wear their hair in dreadlocks which they do not cut and use natural products to wash and condition their hair. They argued that the code of conduct prevented the wearing of dreadlocks as a hairstyle, but that the student wore dreadlocks because of her religion, and so the school’s instruction to cut her hair was an instruction to violate her faith.

The court was willing to hear the student's urgent application, considering the child’s best interests as paramount, and that the serious invasion of her right to education continued every day she was not in class.

The court found that the school had discriminated against the student on the basis of her religion. The court said that “the courts…must be alert and proactive to root out the evil of religious intolerance in any form. They should nip it in the bud wherever and whenever it raises its ugly head.”

In Australia, there is an absence of conformity among the States as to whether discrimination based on religion is unlawful or not. While the majority of States prohibit discrimination on the basis of religion, New South Wales and South Australia do not. South Australia, for example, has only a narrow prohibition of discrimination on the ground of religious appearance or dress.

Religious discrimination is not expressly prohibited in New South Wales. Instead, complaints are often made on the basis of race, which is defined by the Anti-Discrimination Act 1977 to include ‘ethno-religious’ origin. The Act makes it unlawful for schools to discriminate against a person on the ground of race with regards to admission or access to benefits. ‘Ethno-religious’ has recently been described as “a strong association between a person’s or a group’s nationality or ethnicity, culture, history and his, her or its religious beliefs and practices.”

Discrimination that is only based on religion is not unlawful and so if the student had been attending school in New South Wales, she would need to have shown that the discrimination was due to her membership of an ‘ethno-religious’ group.

It is important that schools keep abreast of changes to anti-discrimination legislation. ‘A Safe Learning and Working Environment’ is a policy document produced by Emil Ford Lawyers which covers discrimination, harassment and bullying. While having an up-to-date policy does not by itself eliminate discrimination from the school environment, it is a helpful first step.


Discriminatory admissions process

Abigail sought admission to the University of Texas. The University had committed itself to increasing racial minority enrolment and had an admission policy which was supportive of this. Applicants’ admissions were assessed on the basis of their academic results as well as a “personal achievement score” which considered, among other things, the applicant’s leadership skills, awards, family status and race. Unfortunately, Abigail was rejected for admission to the University.

Abigail, who is Caucasian, sued the University, contending that the University’s use of race in the admissions process was discriminatory and unlawful. The University argued that its discrimination brought educational benefits that flowed from a diverse student body. US law allows the use of race as one of many “plus factors” in an admissions program that considers the overall contribution of each candidate. However, race-conscious admissions programs must “remain flexible enough to ensure that each applicant is evaluated as an individual and not in a way that makes an applicant’s race or ethnicity the defining feature of his or her application.”

The US Supreme Court affirmed major precedents going back 35 years by asserting that an admission policy that helps to produce a more diverse student body serves a compelling interest of government by achieving educational and social benefits.

In addition to the Commonwealth’s Racial Discrimination Act 1975, each State and Territory across Australia has its own legislation prohibiting discrimination on the basis of race. Schools are prohibited from discriminating against a person on the ground of race by refusing the person’s application for admission as a student or in the terms on which it is prepared to admit the person as a student. As discussed in previous editions of Education Law Notes, schools' obligations are not limited to decisions of admission. While schools are not liable for the discriminatory conduct of their students, they are liable for the conduct of their employees. It is unlawful for a school to subject a student to a ‘detriment’ on the ground of race. This could include allowing a culture of racial harassment. Failure to comply with anti-discrimination policies can also amount to detriment. 

 


Discrimination: clarifying the exceptions

All Australian discrimination laws provide exceptions designed to prevent the actions of religious bodies from being unlawful. The exceptions seek to strike a balance between two important human rights: the right to religious freedom and the right to be free from discrimination.

The operation of the exception in the NSW Anti-Discrimination Act has been tested recently. An agency of Wesley Mission in Sydney arranges foster care. A same sex couple applied to be foster carers. They were rejected because they were homosexual. On its face, this was unlawful discrimination on the ground of homosexuality. One of the exceptions allows conduct of a body established to propagate religion that is necessary to avoid injury to the religious susceptibilities of adherents of that religion. Did it apply?

Wesley Mission was a body established to propagate religion. Could a school be too? This must be doubtful. However, the test is different under federal legislation and under that of some states and territories. In them, the exception applies to a body conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed. Many religious schools would qualify as such a body.

What was the religion? The NSW Administrative Decisions Tribunal said it was Christianity or, if that was wrong, the religion of the Uniting Church. The Tribunal then concluded that, given the diversity of views among adherents of Christianity and of the Uniting Church about homosexuality, the prohibition on homosexual foster carers could not be said to be necessary to avoid injury to their religious susceptibilities. The Tribunal also said the religious susceptibilities of all or most adherents had to be injured. These conclusions effectively removed any practical application for the exception.

However, the Appeal Panel, mindful of the purpose of the exception, has said that more than one but not necessarily all adherents must be affected. The Appeal Panel also said religion could be defined to be the Wesleyan (or Methodist) understanding of Christianity.
The matter has therefore been sent back to the Tribunal to determine whether Wesley Mission’s conduct in refusing the homosexual men as foster carers was necessary to avoid injury to the religious susceptibilities of adherents of Wesleyanism.
 


Disability Standards for Education

A student has brought a claim under the Disability Discrimination Act against Methodist Ladies College in Perth alleging disability discrimination in the provision of educational standards. On an application to transfer the matter to the Federal Court of Australia where the test was whether there was an issue of general importance to be tried, the Court noted that:

  1.  there are no relevant cases in relation to disability discrimination in education which go to the application of the Disability Standards for Education 2005 which were published for the first time in August 2005;
  2. the Standards are obviously important in the context of the obligations of educational institutions to students with disabilities;
  3. the alleged right of disabled persons and disabled students to be educated in accordance with those Standards, in both the State and private school systems is important.

The Court was therefore satisfied that, in the circumstances of this case, there is an issue of general importance to be determined in relation to a class of persons, namely students with disabilities, or a class or classes of students with disabilities, and particularly with autism, in relation to the application of the Standards.

We will wait with interest the final outcome of this case.
 


References

Mr Crewdson was a former employee of the NSW Department of Community Services who was applying for new employment with the Department. His application was unsuccessful leading him to make a discrimination claim against DoCS on the ground of a perceived disability under the Anti-Discrimination Act. The Administrative Decisions Tribunal held that he was discriminated against by DoCS when it refused to re-employ him because he had not satisfied it that he was not suffering from a mental illness.

Mr Crewdson also made a complaint under the Act of victimisation against Ms Gillett, the former House Manager of the home in which Mr Crewdson had been employed. The complaint was that Ms Gillett gave Mr Crewdson a very negative reference in relation to his application for re-employment. He asserted that the reason she did so was that he had previously complained about the discriminatory treatment of residents in the group home in which he had been working.

Indeed, Ms Gillett was surprised that she had been asked to give Mr Crewdson a reference. She said that she had some differences with Mr Crewdson "regarding shortcomings in his work performance as a team player." She said she was certainly not willing to give Mr Crewdson a positive reference unless he had addressed the concerns relating to his mental health. Ms Gillett said that the negative reference she gave was a truthful response to an inquiry about his suitability for employment. It was not done to punish him for making complaints.

The Tribunal found that the reference was very negative and that it was one of the reasons he didn’t get the job. However, to amount to victimisation, the reference had to be given because of complaints that Mr Crewdson had lodged about the treatment of residents. The Tribunal found that Ms Gillett was concerned, not that Mr Crewdson had complained about the treatment of residents, but that he had become "obsessed" with a particular resident’s care. Also, her "anger and frustration" was not because of the complaints he made about the residents’ treatment but because of allegations that he had made about Ms Gillett, which she considered defamatory. None of Mr Crewdson’s assertions satisfied the Tribunal that Ms Gillett’s very negative reference was on the ground that Mr Crewdson had lodged complaints about residents. Rather, it was a genuine expression of her opinion. The complaint of victimisation was therefore not substantiated.

Although the complaint of victimisation was not made out in this case, those giving references need to be aware of the danger of making negative statements about a person because that person has made complaints about alleged discriminatory behaviour.
 


Discrimination against obese man

The Australian Taxation Office withdrew its offer of employment to an obese man when it found that he had hypertension. The man said he had been discriminated against because of a disability. The ATO argued that the offer was subject to him being well enough to do the job and that medical tests showed that he couldn't drive which was an inherent requirement of the job. The Federal Court said very high blood pressure was a disability. The Court said that the ATO hadn't proved that the man couldn't be accommodated even if he wasn't able to drive. Hence, the ATO had treated him less favourably than another person without the blood pressure. The Court awarded significant damages.

Schools, already aware of the challenges of enrolling students with disabilities, must also take care when contemplating the employment of staff with disabilities.
 


Racial discrimination

The NSW Administrative Decisions Tribunal Appeal Panel has recently observed that there is no contravention of the Anti-Discrimination Act where teachers simply fail to respond adequately to racist behaviour among students. The Tribunal noted: “The failure to respond adequately needs to be ‘on the ground of’ the student’s race for it to be unlawful. Taken to its logical extreme, this means that an educational authority will not be in breach of the Anti-Discrimination Act if it fails to provide any response to racist behaviour among students.

Similarly, if it provides the same response regardless of the race of the students concerned, it will be very difficult to prove that the response was ‘on the ground of’ race. To remedy this situation, the Anti-Discrimination Act would need to be amended to make racial harassment unlawful, just as it makes sexual harassment unlawful.”

The Tribunal made these observations when hearing an appeal by the NSW Department of Education and Training in a case we have previously noted involving three primary school boys whose father complained of racial discrimination on their behalf. The Appeal Panel also had these interesting things to say:

  • The Act does not make a school liable for the discriminatory conduct of its students. Nor are the students personally liable for discriminating against another student on the ground of race. The school is only liable for its own conduct and, vicariously, for that of its employees.
  • It is unlawful for a school to discriminate against a student on the ground of race by subjecting the student to a “detriment”, such as by allowing there to be a school environment poisoned by racial harassment.
  • Non-compliance with anti-discrimination policies can also amount to detriment.

Damages cannot be awarded to a father who merely brings proceedings on behalf of his sons.
 


Racial Discrimination

It is unlawful in any Australian school to treat children less favourably because of their race than one would treat other children of a different race. Fortunately, this is well recognised and so complaints of racist behaviour against teachers are rare. However, the NSW Administrative Decisions Tribunal has recently had to deal with complaints by a father of Chinese descent about a school’s dealings with his three primary aged boys. While not everything the father alleged was accepted, the Tribunal found that classmates of the boys said that they would kill all the Chinese and Asians, they hated the Chinese and Asians, they would bomb all the Chinese and Asian restaurants and Chinese food tastes like shit. At other times, students said things like “ching chong chinaman”. These students weren’t given anti-racism counselling and the boys weren’t offered any counselling to assist them to deal with hearing such remarks. The teachers said that they didn’t recognise the remarks as racist. The Tribunal disagreed. It noted that the object of the law was to end intolerance, prejudice and discrimination. Even though the school had a satisfactory anti-racism policy and two teachers trained in dealing with racism, the Tribunal noted that the training had occurred many years before and that neither teacher had followed the policy. The teachers were reactive rather than proactive in dealing with racism, didn’t really understand racism and lacked familiarity with the policy. The Tribunal said that if the law, the anti-racism policy and training were to be more than mere rhetoric, the school needed to create an environment in which “childish” talk which was racist was discouraged. The school’s failure to do this amounted to unlawful discrimination on the ground of race.
 


Direct Disability Discrimination

Mr & Mrs Tyler claimed that their son, Joseph, who suffers from Downs Syndrome, was expelled from a NSW private school on account of his disability and that this was unlawful discrimination under the Disability Discrimination Act 1992.

It was alleged that Joseph had run away from class on four occasions and had thrown an object from a balcony which hit a teacher. It was alleged that Joseph would not take instruction from his teacher. The Principal requested a meeting with Joseph's parents to discuss Joseph's behaviour and temporarily excluded Joseph from the school until the meeting. At the meeting, Mr & Mrs Tyler informed the school that Joseph and his brothers were being withdrawn from the school.

Many of the facts were in dispute, including whether the school had expelled Joseph or whether he had been withdrawn from the school by his parents. The Court found that Joseph was withdrawn from the school.

The Court was required to consider:

  1. whether, by excluding Joseph, the school treated him less favourably than, in circumstances that are the same or are not materially different, it would treat a person without his disability; and
  2. if so, whether Joseph suffered loss or damage as a result.

The Court found that Joseph had not been treated less favourably by the school than a person without his disability would be treated. It found that Joseph was not temporarily suspended from the school because of his disability, but rather because of the school’s concerns about its duty of care to the teachers and students. Accordingly, the school’s actions were not discriminatory and the Court was not required to consider whether Joseph suffered loss or damage as a result.

This case is another in a line of cases saying that a school does not engage in disability discrimination by excluding a child with a disability from the school, if the reason for the exclusion is not the disability but the school’s concerns that it would breach its duty of care to the students and teachers if the child was not excluded.
 


Indirect Disability Discrimination

Tiahna is a severely to profoundly deaf child who has developed proficient sign language skills in Auslan, an Australian sign language. Tiahna's first language, like that of her mother and her maternal grandparents, is Auslan.

When she was aged 1 to 3, Tiahna attended Special Education Units run by Education Queensland which required that she be taught in English, including signed English, without an Auslan teacher or interpreter. Tiahna claimed that this amounted to indirect discrimination under the Disability Discrimination Act 1992.

To succeed, Tiahna had to prove that Education Queensland discriminated against her on the ground of her disability by requiring her to comply with a requirement or condition:

  1. with which a substantially higher proportion of persons without the disability comply or are able to comply;
  2. which isn’t reasonable having regard to the circumstances of the case; and
  3. with which she doesn’t or isn’t able to comply.

The Court said that Tiahna was “able to cope” without Auslan and so was able to comply with the requirement that she be taught in English without Auslan.

On appeal, the Court decided that, even though Tiahna could cope with the requirement that she be taught in English, she wasn’t able to comply with the requirement because to do so would mean she would suffer serious disadvantage. The Court said that because Tiahna was proficient in Auslan she couldn’t reach her full potential unless taught in Auslan - English wasn’t an adequate alternative.

This case was decided on its specific facts and circumstances and the judgment does not establish that educational institutions must provide, and act unreasonably if they do not provide, Auslan teachers for all deaf children who desire it.
 


Disability Discrimination

Mr Rana had an undergraduate degree from a South Australian University. He tried to enrol in a Masters Degree and a Graduate Certificate program but was declined. He said this was because of his mental illness. He complained of discrimination on the ground of disability. Mr Rana had letters from doctors expressing views on various psychological disabilities he experienced but he didn’t call any doctor to give oral evidence of his disability.

The University said it didn’t accept Mr Rana into the Masters program because he didn’t meet its work experience requirements. The University agreed that Mr Rana met the criteria for entry into the Graduate Certificate but declined his admission because of his past conduct at the University and its concerns about the effect of his behaviour on students and staff. The University pointed to complaints it received regarding Mr Rana’s conduct while doing his undergraduate degree. They concerned him talking, shouting and interjecting in tutorials, upsetting students, sending harassing emails to staff and harassing and life threatening emails to other students.

The Magistrate dismissed Mr Rana’s application as he couldn’t find that Mr Rana was knocked back on the ground of disability because Mr Rana had not provided sufficient medical evidence of his disability and the way in which the disability manifested itself in relevant behaviours.

Students will be unsuccessful in disability discrimination claims if they cannot prove that:

a. they suffer from a disability;
b. the disability manifests itself in various behaviours; and
c. as a result of those behaviours, they were treated less favourably.
 


Religious Discrimination

The Supreme Court of Canada recently decided that a 13 year old Sikh student, who was banned from wearing his “kirpan” (a religious object resembling a dagger) to school, was religiously discriminated against. The school board decided not to ratify an agreement with the parents of the student that allowed him to wear the object if it was sealed in his clothes. The Court found the decision not to ratify the agreement led to more than a minimal impairment of the student’s rights.

Section 116 of the Australian Constitution provides limited protection for religion: it only extends to laws made by the Commonwealth. All states, apart from NSW and South Australia, have provisions in their anti-discrimination legislation making religious discrimination illegal. The closest NSW gets is to make discrimination on an “ethnoreligious” basis unlawful. A Sikh’s right to wear a kirpan probably wouldn’t qualify for protection under the “ethno-religious” ground.

Independent schools will need to decide whether their duty of care to students will be compromised by allowing this particular religious observance. If you believe that boys with kirpans will create an unreasonable risk of injury to students, you should take steps to minimise the possible danger.


A Tale of Two Deaf Children

The parents of two profoundly deaf children alleged discrimination against Education Qld on the basis of their disabilities. Tiahna and Ben, although they have the same disability, were treated very similarly by Education Qld but only Ben was successful. This is a reminder to educators of the importance of looking at the needs of each child and not treating all children with the same disabilities in the same way.

Ben and Tiahna were both educated in signed and spoken English, not in Auslan (the natural visual-spatial language of the deaf). Tiahna became familiar with Auslan through her family, whereas Ben started school effectively with no language at all.

Ben brought a direct discrimination claim – that the quality and fluency of the signed English in which he was taught was poor. The Court found that there was no evidence that Ben's teachers were not able to deliver signed English with sufficient quality as to amount to discrimination. Both Ben and Tiahna brought an indirect direct discrimination claim – that they should have been educated in Auslan, not English.

Education Qld adopted a philosophy of educating deaf children known as "Total Communication Policy" which did not use Auslan. There was considerable evidence about the gradual change in views amongst academics and teachers from a policy of oral education (to the 1970s) to the use of signed English (in the 1980s and 90s) and then most recently to the use of Auslan as part of a bilingual-bicultural program. The Court said it was appropriate for Education Qld to have taken time in considering the benefits of changing to a bilingual-bicultural program and it was not criticised for not implementing such a program before May 2002 (when the claim was brought). The Court noted that a bilingual-bicultural program was likely to be introduced in future.

However, the Court did find that Education Qld should have recognised that Auslan delivered on a one-on-one basis would still assist profoundly deaf children and both Ben and Tiahna should have been assessed to determine whether they should have been instructed in English (including signed English) or Auslan. The Court held that Education Qld imposed a condition that the children be educated in English without an Auslan interpreter or teacher and that this was not reasonable if they couldn’t comply with that condition.
Tiahna had received her education in signed and spoken English and was progressing well. She was found to have been able to comply with the condition that she receive her education in English. Her claim was therefore dismissed.

However, Ben's education had suffered significantly and was found not able to comply with the English-education requirement. Education Qld was held to have unlawfully discriminated against Ben and ordered to pay him $64,000 ($40,000 for loss of earning capacity, $20,000 for the embarrassment, hurt and social dislocation of being unable to communicate in any language, and $4,000 for interest on that amount). 


Religious Dress in Schools

A recent case of uniform regulation at Auburn Girls High School has raised questions over a school’s ability to regulate the religious dress of students. Yasamin Alttahir, a 17 year old Shiite Muslim, was reportedly ordered by school authorities to cease wearing the mantoo - a body length religious tunic.

 In NSW, religious discrimination is not normally unlawful. However, anti-discrimination law does catch discrimination based on ethno-religious origin. Courts have defined the term “ethno- religious” as signifying “a strong association between a person’s or a group’s nationality or ethnicity, culture, history and his, her or its religious beliefs and practices.”
The law’s silence in relation to religious discrimination may allow independent schools to regulate school uniforms despite a student’s individual religious beliefs. Schools must be aware of situations where dress is closely linked not only to a student’s religion but also to his or her race, nationality or ethnic origin. Where this is the case, a restriction on the uniform worn may contravene anti-discrimination law.

A recent similar English case ruled in favour of the student because of the freedom to manifest religion granted under the European Convention on Human Rights. Currently, there is no comparable right in NSW. 


Discrimination Trap

Jacob Clarke was profoundly deaf. His parents applied to enrol him as a pupil at a secondary College. The College offered Jacob a place in Year 7 on the understanding that his parents accepted and supported the model of learning support offered by the College. This model did not include the provision of Australian Sign Language (Auslan) interpreting assistance and instead relied on the use of note-taking as the primary communication tool to support Jacob in the classroom. Accordingly, Mr & Mrs Clarke did not accept the offer.

Subsequently, Mr and Mrs Clarke complained to the Human Rights & Equal Opportunity Commission alleging unlawful discrimination against Jacob on the grounds of his disability.
To succeed, they had to show that:

  • the terms and conditions upon which enrolment was offered provided that Jacob comply with a "requirement or condition";
  • a substantially higher proportion of persons without the disability comply or are able to comply, with the requirement or condition;
  • Jacob does not or is not able to comply with the requirement or condition; and
  • the requirement or condition is not reasonable in the circumstances of the case.
     

The Federal Court found that the College was imposing a requirement that Jacob participate in and receive classroom instruction without the assistance of an interpreter. The Judge said:

"There is nothing inherent in classroom instruction that makes the provision of silent sign interpretation for a deaf pupil impossible."

The court then found that a substantial proportion of those students attending Year 7 at the College in the year Jacob would have started was able to comply with the requirement and that Jacob was unable to comply without facing serious disadvantages.
 

The final and most difficult question for the court was to determine whether the requirement that Jacob receive classroom instruction without the assistance of an interpreter was reasonable in the circumstances. The court noted that this was not a test case about the merits of Auslan compared with other means of communication between deaf and hearing people. The court recognised that there were clearly differences of opinion on this matter. Nevertheless, the court ultimately concluded that, given Jacob's needs, the College's unwillingness to provide Auslan interpretation for him was unreasonable.

This is an unusual case. The College and its staff clearly welcomed all pupils, including profoundly deaf pupils. The Catholic Education Office, which administered many schools including the College, was proactive in providing for students with disabilities throughout its schools. The court said that if the CEO and the College were in breach of the law at all "it is by way of a single instance of unreasonable conduct brought about by mistakes made in good faith, rather than in consequence of any systemic tolerance of the concept or practice of discrimination against any category of disabled people. Nevertheless, in my opinion, such general considerations, except in a background way, do not carry consideration of the case very far. The road to infraction of discrimination law, as to other places to be avoided may be paved with good intentions."
 

This case underlines the importance for all schools, even those committed to welcoming students with disabilities, having their enrolment policies and procedures vetted to ensure that they comply with the Disability Discrimination Act. 


Pregnancy and discrimination

Amendments to the Sex Discrimination Act 2002 mean that when considering someone for employment or promotion, as it is unlawful to discriminate against them on the grounds of sex, marital status, pregnancy or potential pregnancy, it is also unlawful to request or require information if persons of the opposite sex, of different marital status or who are not pregnant or potentially pregnant would not be requested or required to provide that information in similar circumstances. For example, it would be unlawful in a job interview for a school to ask a female applicant if she is pregnant or intends to become pregnant. Employers may ask general questions of male and female applicants, such as what changes they envisage in their lives in the next three years. If in answering general questions, it is revealed that a female applicant was pregnant or was planning to become pregnant, it would still be unlawful to refuse her employment or promotion because of her pregnancy or potential pregnancy. Also, employers may ask for medical information about a pregnancy for occupational health and safety purposes. 


Disability standards in education

The Federal Minister for Education, Science and Training announced that the government was moving to implement standards under the Disability Discrimination Act in the area of education. The gestation period for this document has exceeded 7 years! The draft standards may be found at the Department's website. The practical impact of the standards, if adopted, will be significant because the Act makes it unlawful for a person to contravene a disability standard. On the other hand, if a person acts in accordance with a disability standard, the person's actions cannot be made unlawful by the Act. The draft standards cover enrolment; participation; curriculum development, accreditation and delivery; student support services; and elimination of harassment and victimisation.

The standards have obvious financial implications. However, compliance with the standards is not required if compliance would impose an unjustifiable hardship on the provider. In other words, the defence of unjustifiable hardship will be available in relation to students already enrolled whereas at the moment under the Act it is only available as a defence when a school is refusing to enrol a student with a disability.
 


Workplace Dress Codes and Sexual Discrimination

A recent decision in the NSW Administrative Decisions Tribunal has implied that employers should have consistent personal presentation policies that apply generally to all staff members, both male and female. Mr Bree, a service station employee, alleged that he had been subjected to direct discrimination under the Anti- Discrimination Act 1977. During his employment as a console operator, he wore a small stud style earring in his left ear. The ADT considered that:

• this form of adornment was not uncommon among male persons;
• the earring was not a safety hazard and would not physically interfere with the proper discharge of his duties as a console operator.

There were female employees at the service station who were allowed to wear earrings.
Mr Bree was dismissed and one of the main reasons was his refusal to remove the earring from his ear whilst at work. The ADT said this was a discriminatory act, as Mr Bree was treated less favourably than a female employee in similar circumstances. The employers were ordered to pay Mr Bree $16,956 by way of compensation, which included $5,000 for the hurt and humiliation he suffered as a result of the discriminatory conduct.

A similar decision was made in the UK. Matthew Thompson, an administrative assistant at Jobcentre Plus in Stockport, brought an action against the Department of Work and Pensions for the institution of a dress code forcing him to wear a tie to work. Mr Thompson argued that forcing men to wear ties amounted to discrimination on the grounds of sex, since women in his workplace were allowed to wear T-shirts to work without facing disciplinary actions from management.

While the circumstances of each case will be different, schools must be conscious of these decisions when they establish dress codes for their staff.
 


Ethno-Religious Discrimination


Racial discrimination in schools is unlawful. This means that schools cannot refuse to admit, or prescribe terms to admit, students on the ground of race. Further, schools cannot deny access to any benefit provided by the school or expel a student on the ground of race.

The Anti-Discrimination Act 1977 defines race to include colour, nationality, descent and ethnic, ethno-religious or national origin. The NSW Administrative Decisions Tribunal recently gave some clues as to the meaning of ethno-religious origin when it was considering whether Muslims were a race. In the Tribunal's opinion, ethnoreligious signifies a close tie between a person's faith, race, nationality and ethnic origin. It is not sufficient for someone to assert their Muslim faith to fall within the statutory definition of race. Examples of what is meant by 'ethno-religious' include Javanese Christians, Bosnian Muslims or Northern Irish Catholics. The definition does not allow members of an 'ethno-religious' group to lodge complaints in respect of discrimination on the basis of their religion. The fact that students may claim membership of a particular race by virtue of their 'ethno-religious' origin does not convert every discriminatory act into discrimination on the ground of race.

How this practically applies was discussed by the Tribunal's Appeal Panel in a case involving a man and his children who claimed to have been discriminated against on the ground of their race as Jews. The father alleged racial discrimination on behalf of his children as they were exposed to Christmas and Easter celebrations that were not part of the Jewish faith and took part in assemblies where students were provided with an opportunity to pray.

The Appeal Tribunal decided that mere exposure to Christian teaching during Christmas and Easter celebrations was not race discrimination. After establishing that the children's adherence to the Jewish faith brought them into the statutory definition of race, the children's father had to prove that they were discriminated against because of their membership of that race. To establish racial discrimination, he had to prove that the school put the Christmas and Easter celebrations on, or forced the children to attend the celebrations, because of the children's adherence to the Jewish faith.

The Tribunal decided that there was no less favourable treatment of the Jewish children as they were treated the same as every other child who participated in the activities at Christmas and Easter. The Appeal Tribunal also confirmed that the inclusion of ethno-religious origin in the definition of race does not prevent religious schools from employing staff on the basis of their membership of a particular religion.
 


Equal Opportunity for Women in the Workplace

Some schools with 100 or more staff may be unaware that they have reporting obligations under the Equal Opportunity for Women in the Workplace Act 1999. Such schools must develop an "equal opportunity for women in the workplace" program which considers seven specific employment matters, including recruitment and selection, promotions, transfers, conditions of service and other employment arrangements. The program should analyse the school's current workplace profile and establish a pro-active plan to address any issues arising for women. An annual report must be sent to the Equal Opportunity for Women Agency regarding the implementation and progress of the program. A failure to report could result in being named in the Federal Parliament. Please contact us if you require further information about your obligations.
 


Disability Discrimination

Daniel, a 12 year old boy, suffered from an intellectual and disability resulting from an injury to the front part of the brain which controls emotional flare ups. As a result, Daniel displayed emotion through "uninhibited" behaviour since he could not communicate his frustration or stress without aggression. Despite his disability, Daniel's foster parents felt that it would be best for Daniel socially and academically to attend a mainstream high school rather than the local support unit for disabled students. Although his application for enrolment was at first rejected, after much discussion about his integration, Daniel was accepted and funding was granted by the Department of Education.

The school made many arrangements to accommodate Daniel. He received lessons from a teacher's aide through the Distance Education Support Unit to supplement his work in the classroom. The school's general welfare and discipline policy was modified to specifically allow for his needs. Daniel's teachers were to record his behaviour after every class. He was also subject to mid-term evaluations which monitored his progress. These evaluation reports and the teacher's aide communication book showed that Daniel's behaviour fluctuated from being happy and well behaved in class to resisting instructions and striking out at those around him. Daniel was suspended for violence against his teacher's aide within a month of starting at the school. His father and his psychologist suggested that a suspension was not an effective punishment for Daniel as it reinforced bad behaviour rather than encouraging good behaviour. The psychologist offered to recommend other behaviour management strategies but this offer was never taken up.

Special education consultants from the Department observed Daniel at school and devised a report which recommended Daniel's continued enrolment and additional methods of accommodating him. This report was never given to the principal or his parents. Daniel was suspended four more times before he was excluded for violence against his teacher's aide and other students. Enrolment in the Support Unit was recommended to his parents who refused to consider the suggestion.

Complaint of unlawful discrimination

Daniel's father complained to the Human Rights and Equal Opportunity Commission that Daniel had both been treated less favourably than other students by being more severely punished and had also suffered a detriment to his education by being excluded from a mainstream school (ss 5 and 22 of the Disability Discrimination Act). HREOC said the objects of the Act included prevention of "reverse stereotyping" where the actual condition of disabled people was ignored and they were forced to manage alone in a mainstream environment. This was exactly Daniel's situation. The basis of his complaint was that the school did not fully understand the best way to manage his behaviour and did not take advantage of available resources to obtain a more effective approach. For example, the school modified the welfare and discipline policy for Daniel without consultation with Daniel's foster parents or his psychologist who were most experienced in dealing with his behaviour. Similarly, when this policy was obviously not managing Daniel's behaviour successfully, the school was not flexible enough to accept recommendations of change. As a result, Daniel was deprived the benefit of a sensitive school welfare policy.

In the classroom, teachers were not sufficiently prepared or informed regarding Daniel's specific disability or its effects on his behaviour. The reports, which were relied upon as evidence that Daniel was not benefiting from being at the school, were generally only completed when Daniel had been disruptive. As a result, little allowance was made for his disability and he received less favourable treatment than other students.

The outcome

HREOC held that Daniel was excluded from school because of his disability. The school and teachers had not based disciplinary policies or attitudes regarding Daniel on accurate information of the extent and effects of his disability. Thus, the efforts of the Department and the school were generally misguided and, since Daniel's behaviour was so closely connected to his disability, the school actually punished Daniel for his disability. The Department was ordered to pay $49,000 to Daniel for acts of discrimination such as the suspensions, the exclusion from school, the loss of opportunity to attend a mainstream school and the inflexibility of the school to adjust the behaviour management policy.

Lessons to learn

It is important that schools not only make a concerted effort to accommodate disabled students but also ensure that their efforts are guided by detailed knowledge of the specific disability. Treat each case individually. Don't make assumptions about the student’s capabilities. Involve those who are most experienced in dealing with the student in the decision and policy making process. To avoid discrimination through disciplinary procedures, it is crucial that those dealing with the student understand the meaning of the student's behaviour rather than reactively dealing with the outworking of the disability as if it was a behavioural problem.

... and more on this case (below) ...

 

Disability Discrimination – Commonsense at last!


We have written previously about the case of Daniel Hoggan who was born in 1985 and sustained severe brain injury at about the age of 7 months. In mid-1996, his foster parents, Mr & Mrs Purvis, inquired about enrolling Daniel at a regional NSW high school for the 1997 school year. Mr & Mrs Purvis met with the then principal of the school and subsequently applied to enrol Daniel. That application was rejected. However, a new principal arrived at the school at the beginning of 1997 and discussions ensued involving Mr & Mrs Purvis, the principal and the Department of Education. In February 1997, the principal decided to enrol Daniel in the school. A welfare and discipline policy relating to Daniel was prepared and a staff development day was held for Daniel's Year 7 teachers to discuss his enrolment, education and participation in the school. Daniel began at the school in April 1997.

On 24 April 1997, Daniel was suspended for one day following an incident involving a teacher's aide. On 7 May 1997, he was again suspended for two days for verbal abuse of a teacher's aide and for kicking a fellow student. On 9 May 1997, a report was prepared following tests carried out by the school's counsellor and registered psychologist. The report said that Daniel's literacy and numeracy skills were at pre-school level. On 30 May 1997, Daniel was placed in "time out" during an English class because he kicked a desk over, swore, and kicked other children and bags. There were further incidents of a similar nature on 19, 23 and 24 June and 25 July 1997. On 30 July 1997, Daniel kicked his teacher's aide and was suspended for two days. On 2 September 1997, after kicking a student, Daniel was suspended for a further thirteen days, but the suspension was subsequently reduced to eight days. He returned to the school on 15 September 1997 but on 18 September 1997 he was suspended for a further twelve days when he punched a teacher's aide in the back.
On 18 September 1997, the principal wrote to Mr & Mrs Purvis expressing his concerns about Daniel's future at the school. He said that he was spending about seven hours a week supporting Daniel's education. On 15 October 1997, a case management meeting was held but no resolution was reached. On 25 October 1997, the school counsellor recommended enrolment of Daniel in the special education unit at Grafton High School. On 4 November 1997, the principal was informed that the Teachers' Federation did not support Daniel's continuing at the school.

At a meeting held on 18 November 1997, attended by the principal, staff of the school and staff of the Departments of Education and Community Services, it was decided that it was in Daniel's best interests to have him enrol at the special unit at a neighbouring school. Mr & Mrs Purvis were informed of that decision on 27 November 1997 by a DoCS officer.

However, on 2 December 1997, Mr Purvis sent a fax to the principal announcing his intention to send Daniel back to the neighbouring school. At a meeting on 3 December 1997, the principal indicated that he would exclude Daniel from the school. He wrote on the same day to DoCS saying that he would exclude Daniel because of his concerns for the health and safety of the staff and students at the school. On 17 February 1998, the Assistant Director General (Primary) of the Department of Education rejected an appeal by Mr Purvis against that exclusion.

In March 1998, Mr Purvis, acting for Daniel, lodged a complaint with the Human Rights and Equal Opportunity Commission alleging that Daniel had been discriminated against by the State of New South Wales in contravention of the Disability Discrimination Act. On 13 November 2001, HREOC made a declaration that, in breach of ss 5 and 22(2) of the Act, the State had discriminated against Daniel on the grounds of his disability. HREOC also ordered that the State pay $49,000 compensation.

The case then went on appeal to Justice Emmett in the Federal Court. He found that HREOC had made a number of errors of law and said that the matter should be reheard by a different Commissioner. However, Mr Purvis appealed to the Full Court of the Federal Court. The three appeal judges delivered a unanimous decision in April 2002 which will be applauded by school administrators throughout Australia. They disallowed the appeal, agreeing with Emmett J. We set out in full some of the more significant things they said:
"It must steadily be borne in mind that the expulsion of Daniel followed repetitive antisocial and violent conduct towards other students and staff which was plainly unacceptable in a primary school. It was disturbing to the function of education and threatened the safety of other students and staff. Those responsible for administration of the school owed a duty of care to the other students in the school, the teachers and the teacher's aides, with potential liability for any breach of that duty. The disorder as such was ultimately not relied upon by the school in order to prevent enrolment, notwithstanding the potential for anti-social conduct which it involved. If it had been, then it may be that there would have been discrimination, subject to the operation of [the unjustifiable hardship exception]. We do not need to decide that question. The problem was that, once enrolled, the school was not able to cope with the conduct of Daniel which in fact ensued, despite considerable time and effort.

The consequence of [Daniel's arguments] is that, once enrolled, any treatment of the student by the school authorities as a result of conduct caused by his disorder which restricted or disadvantaged him compared with the ordinary student would be discrimination in breach of the Act, no matter how necessary to preserve the discipline of the school and safety of staff and students. On this argument, any exclusion from ordinary classes, or special physical or other restraints imposed as the price of attendance at ordinary classes, would be a breach of [the Act], as the antisocial behaviour caused by the brain damage would be the cause of the special and detrimental treatment. The findings of discrimination which were made by HREOC in relation to acts or omissions other than expulsion go further and impose positive duties on the school to manage the conduct of the student, presumably regardless of cost or impact upon other school activities, without explaining why such special measures would not involve a breach of [the Act]. The critical points are that there is no criterion of reasonableness in [the Act] in relation to a student once enrolled.

In our opinion, [Daniel's] conduct was a consequence of the disability rather than any part of the disability within the meaning of s 4 of the Act. In the particular circumstances of this case, the proper comparison for the purposes of s 5 of the Act, in order to test the relevance of the disability, as such, is between the treatment of Daniel with the particular brain damage in question and a person without that brain damage but in like circumstances. This means that like conduct is to be assumed in both cases. The failure to make this comparison led to the capricious result arrived at by HREOC. Each alleged act of discrimination is to be judged in the light of the conduct of Daniel which had taken place up to that time. The question to be answered at each point (including expulsion) is whether the consequence would have been the same (or worse) if the conduct had been that of a pupil not affected by brain damage."

This decision gives schools some heart as they seek to balance the rights of students with disabilities with the need to provide a safe environment for other students and staff.

 

 


 

In the USA: Punishment based on race!?

When leaving football practice, two Nashville students got into an altercation. The first student, Heyne, alleged that as he was leaving the school parking lot his car accidentally struck the foot of the second student, an African-American. After Heyne got out of his car and apologised, the African-American student allegedly threatened to kill him.

In this particular school, there was a disproportionate number of African-American students serving in-school suspensions. The principal, therefore, had instructed staff to be more lenient in enforcing the school’s code of conduct against African-American students. The African-American student was not disciplined for his part in the altercation.

Heyne, however, was suspended for “reckless endangerment”, initially for two days, then the suspension was increased to 10 days based on charges of “using an object in an assaultive manner” and “cruelty to a student”.

Heyne and his parents sued the school district and several school officials, alleging violations of his 14th Amendment right to due process and equal protection of the law. The student contended that because of the incident being recorded on his school record and the suspension forcing him to miss two football games, he lost out on any chance for a college football scholarship or an appointment to one of the US military academies.

A Nashville Court granted immunity to two of the district officials named in the suit but found that “…the amended complaint contains well-pled factual allegations we must accept as true suggesting that [the principal] suspended Heyne for ten days based in part on Heyne’s race.” The Court went on to say “Heyne’s factual allegations state a plausible claim against [the principal and the two district discipline officials] for violation to his right to equal protection.”

Australian schools need to be careful not to fall into the same trap of unwittingly discriminating against one racial group in an effort not to discriminate against another.
 


References
 

Mr Crewdson was a former employee of the NSW Department of Community Services who was applying for new employment with the Department. His application was unsuccessful leading him to make a discrimination claim against DoCS on the ground of a perceived disability under the Anti-Discrimination Act. The Administrative Decisions Tribunal held that he was discriminated against by DoCS when it refused to re-employ him because he had not satisfied it that he was not suffering from a mental illness.

Mr Crewdson also made a complaint under the Act of victimisation against Ms Gillett, the former House Manager of the home in which Mr Crewdson had been employed. The complaint was that Ms Gillett gave Mr Crewdson a very negative reference in relation to his application for re-employment. He asserted that the reason she did so was that he had previously complained about the discriminatory treatment of residents in the group home in which he had been working.

Indeed, Ms Gillett was surprised that she had been asked to give Mr Crewdson a reference. She said that she had some differences with Mr Crewdson "regarding shortcomings in his work performance as a team player." She said she was certainly not willing to give Mr Crewdson a positive reference unless he had addressed the concerns relating to his mental health. Ms Gillett said that the negative reference she gave was a truthful response to an inquiry about his suitability for employment. It was not done to punish him for making complaints.

The Tribunal found that the reference was very negative and that it was one of the reasons he didn’t get the job. However, to amount to victimisation, the reference had to be given because of complaints that Mr Crewdson had lodged about the treatment of residents. The Tribunal found that Ms Gillett was concerned, not that Mr Crewdson had complained about the treatment of residents, but that he had become "obsessed" with a particular resident’s care. Also, her "anger and frustration" was not because of the complaints he made about the residents’ treatment but because of allegations that he had made about Ms Gillett, which she considered defamatory. None of Mr Crewdson’s assertions satisfied the Tribunal that Ms Gillett’s very negative reference was on the ground that Mr Crewdson had lodged complaints about residents. Rather, it was a genuine expression of her opinion. The complaint of victimisation was therefore not substantiated.

Although the complaint of victimisation was not made out in this case, those giving references need to be aware of the danger of making negative statements about a person because that person has made complaints about alleged discriminatory behaviour.
 


Disability Standards for Education
 

A student has brought a claim under the Disability Discrimination Act against Methodist Ladies College in Perth alleging disability discrimination in the provision of educational standards. On an application to transfer the matter to the Federal Court of Australia where the test was whether there was an issue of general importance to be tried, the Court noted that:

  1.  there are no relevant cases in relation to disability discrimination in education which go to the application of the Disability Standards for Education 2005 which were published for the first time in August 2005;
  2.  the Standards are obviously important in the context of the obligations of educational institutions to students with disabilities;
  3.  the alleged right of disabled persons and disabled students to be educated in accordance with those Standards, in both the State and private school systems is important.

The Court was therefore satisfied that, in the circumstances of this case, there is an issue of general importance to be determined in relation to a class of persons, namely students with disabilities, or a class or classes of students with disabilities, and particularly with autism, in relation to the application of the Standards.

We will wait with interest the final outcome of this case.
 


Changes to anti-discrimination laws

Amendments to federal anti-discrimination laws which are likely to come into effect in July 2011 will:

  • lower the standard for what constitutes sexual harassment;
  • expect employers to protect staff from sexual harassment by customers, clients and people employed by other organisations;
  • protect students of any age from sexual harassment by other students and staff members, including from educational institutions other than their own;
  • protect staff from discrimination on the ground of family responsibilities in all areas of work, not just in relation to termination of employment;
  • ensure special measures to accommodate the needs of breastfeeding women in the workplace and elsewhere are undertaken.

Under the revised definition of sexual harassment, conduct will be considered sexual harassment if a reasonable person would have anticipated “the possibility” that the person would be offended, humiliated or intimidated by the behaviour.

 For the first time in federal anti-discrimination law, employers must ensure that staff are protected from sexual harassment by people outside their organisation. This means that new obligations are placed on employers to take all reasonable steps necessary to protect their staff. Also, the protections of the Act have been extended to apply equally to both men and women.

Schools need to familiarise themselves with these important legislative amendments to avoid litigation and to provide a safe harassment free workplace. 
 


Sex Discrimination in Fees?

Is it ever okay to offer discounted fees to selected students based on their sex? This issue was litigated in South Australia recently. A South Australian grammar School, in an effort to become co-educational, had tried to boost girl numbers by offering discounts and scholarships to selected prospective female students. When the parents of some boys heard of this, they too applied to the School for similar discounts and were refused.

So were these boys being discriminated against because they were boys? To succeed in their complaint, the boys had to show first that they were treated less favourably than other students and second that this discriminatory treatment occurred because of their sex.

The fees for some girls were discounted. Other girls were neither offered nor did they (or their parents) receive fee remissions. Therefore, there was no continuing sex discrimination because the difference in fees charged and paid wasn’t based on sex. The sex discrimination occurred at the point of the offer as the parents of boys were not offered special discounts.

In summary, from 1999 onwards, parents of some girls making enrolment enquiries were treated more favourably than the parents of boy students. However, as the two boys whose parents complained were enrolled in the school before 1999, both were not in the category of boys who were the subject of the discrimination. The boys were already attending the school when the discrimination commenced.

Of the 50 girls enrolled at the school, only 27 got fee assistance. So were the boys treated less favourably than other students because of their sex? The Equal Opportunity Tribunal said no.

It is noteworthy that one member of the Tribunal disagreed with the majority and would have awarded the boys some fee remission. It would be interesting to see what the outcome would have been if the boys had been in the category of boys who were the subject of the discrimination!

Schools must be mindful of the difference between the State and Federal sex discrimination legislation and seek advice if they intend to offer benefits to a selected group of students.


Discrimination: clarifying the exceptions

All Australian discrimination laws provide exceptions designed to prevent the actions of religious bodies from being unlawful. The exceptions seek to strike a balance between two important human rights: the right to religious freedom and the right to be free from discrimination.

The operation of the exception in the NSW Anti-Discrimination Act has been tested recently. An agency of Wesley Mission in Sydney arranges foster care. A same sex couple applied to be foster carers. They were rejected because they were homosexual. On its face, this was unlawful discrimination on the ground of homosexuality. One of the exceptions allows conduct of a body established to propagate religion that is necessary to avoid injury to the religious susceptibilities of adherents of that religion. Did it apply?

Wesley Mission was a body established to propagate religion. Could a school be too? This must be doubtful. However, the test is different under federal legislation and under that of some states and territories. In them, the exception applies to a body conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed. Many religious schools would qualify as such a body.

What was the religion? The NSW Administrative Decisions Tribunal said it was Christianity or, if that was wrong, the religion of the Uniting Church. The Tribunal then concluded that, given the diversity of views among adherents of Christianity and of the Uniting Church about homosexuality, the prohibition on homosexual foster carers could not be said to be necessary to avoid injury to their religious susceptibilities. The Tribunal also said the religious susceptibilities of all or most adherents had to be injured. These conclusions effectively removed any practical application for the exception.

However, the Appeal Panel, mindful of the purpose of the exception, has said that more than one but not necessarily all adherents must be affected. The Appeal Panel also said religion could be defined to be the Wesleyan (or Methodist) understanding of Christianity.

The matter has therefore been sent back to the Tribunal to determine whether Wesley Mission’s conduct in refusing the homosexual men as foster carers was necessary to avoid injury to the religious susceptibilities of adherents of Wesleyanism. 


Disability Discrimination and Violent Behaviour

Late last year, the High Court decided Purvis v NSW Department of Education and Training.

The case was about whether a school had discriminated against Daniel Hoggan, a student suffering from brain damage, who was expelled from school for violent behaviour, on the ground of his disability. The High Court found that the school was not in breach of the Disability Discrimination Act in its treatment of Daniel.

Three important points were made:

  • "Disability" includes functional disorders, such as an incapacity, or a diminished capacity, to control behaviour. The disturbed behaviour of a student that results from his or her disorder is an aspect of the disability.
  • To see if the student with a disability has been treated less favourably, one must make a comparison between the treatment given or proposed to be given to the disabled student and the treatment of a student without the disability "in circumstances that are the same or are not materially different". The circumstances in which Daniel was treated as he was included the fact that he had acted as he had. His violent actions towards teachers and others formed part of the circumstances in which it was said that he was treated less favourably than other students.
  • Finally, if there has been less favourable treatment, one must ask whether such treatment was because of the student's disability; that is, why was the aggrieved person treated as he or she was?

Questions about discrimination?

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