Discrimination & Sexual Harassment in a Body Corporate

The Anti-Discrimination Act 1991 makes unfair discrimination, sexual harassment, vilification, and victimisation unlawful in Queensland.

It is important for bodies corporate to be aware that they have the obligation to address complaints of discrimination and sexual harassment.

Furthermore, bodies corporate have the responsibility to take preventative action so that instances of discrimination do not occur in the first place. This includes granting access to premises, facilitating quiet enjoyment of property, day-to-day maintenance, common services and employing staff.

What is Discrimination?

Discrimination is treating a person unfavourably, or proposing to, because of a personal attribute protected by anti-discrimination legislation.

Discrimination also occurs if an unreasonable policy or practice is applied that may disadvantage someone because of a personal attribute.

There are many personal attributes, which include

  • sex
  • relationship status
  • pregnancy
  • parental status
  • breastfeeding
  • age
  • race
  • impairment
  • religious belief or religious activity
  • political belief or activity
  • trade union activity
  • lawful sexual activity
  • gender identity
  • sexuality
  • family responsibilities

It is against the law to authorise and assist discrimination or sexual harassment, or to victimise someone for making a complaint about discrimination or sexual harassment.

What is Sexual Harassment?

Sexual harassment is unwelcome sexual behaviour, which could be expected to make a person feel offended, humiliated or intimidated. Sexual harassment can be physical, verbal or written.

Examples of sexual harassment include:

  • staring, leering or unwelcome touching
  • suggestive comments or jokes
  • unwanted invitations to go out on dates or requests for sex
  • intrusive questions about a person’s private life or body
  • unnecessary familiarity, such as deliberately brushing up against a person
  • emailing pornography or rude jokes
  • displaying images of a sexual nature around the workplace
  • communicating content of a sexual nature through social media or text messages.

Sexual harassment is unlawful under the Sex Discrimination Act in different areas of public life, including employment, service delivery, accommodation and education. Some types of sexual harassment may also be criminal offences.

Body Corporate Obligations

The following are key obligations under for bodies corporate in relation to discrimination.

Employment

When employing someone the body corporate must not discriminate based on one of the characteristics protected under the Act.

Providing Services

When providing a service, the body corporate must not discriminate based on one of the characteristics protected under the Act. ‘Services’ could include maintenance, access to doors and hallways, ensuring there is sufficient lighting and signage etc.

Disabilities

The body corporate must make ‘reasonable adjustments’ for people with disabilities. For example, when maintaining a common area the body corporate make reasonable adjustments to allow people with disabilities to access and use that area.

The body corporate must:

  • not discriminate against someone because of their disability in relation to any premises that the public or a section of the public can access.
  • allow a person with disabilities to make reasonable alterations to common property to meet their special needs if the person pays for it, and if the alterations do not impact the interests of other owners or occupiers.
  • not authorise and assist discrimination, such as requiring a committee or manager to impose discriminatory conditions on meetings that do not accommodate a person’s disability.

For more information on the body corporate’s obligation to people with disabilities click here.

Preventing Discrimination

The body corporate also has a duty to take reasonable measures to prevent discrimination from happening in the first place.

This means that the body corporate must proactively give consideration to how their actions may affect people with a disability, older people, carers etc. who may experience difficulties with access.

For example – the body corporate must consider whether there are any potential problems for people in accessing the premises and think about how to address these. Things to consider include:

  • how poor accessibility might affect people with different types of disability
  • what changes are required to accommodate a person’s disability, age, parental or carer status
  • the body corporate’s own financial circumstances
  • the effect of making a change

It may not be possible to prevent discrimination in some circumstances when the adjustments required are not reasonable. However, the body corporate must demonstrate that it has considered how it can best promote access to and participation in its services.

Tenants

There is often a mistaken belief that owners have more rights than a tenant, given they pay levies and own the lot.  So, it’s ok for the body corporate to not allow a tenant to do some things and restrict others to “owners only”.

The BCCM Act makes clear that any by-law which discriminates between different types of occupiers is an invalid by-law

Remember that common property and facilities are for the benefit of all. A tenant by leasing their lot takes over that lot’s owner’s right to the use common property. An occupier who is also an owner has no greater rights of occupation than a tenant.

This is the same for things like maintenance i.e. if it is a body corporate responsibility, then under the Act the body corporate is required to attend to it, regardless of whether it is having an impact on a tenant or an owner.

Exceptions to Unlawful Discrimination

Not all discrimination will be against the law.

A simple example of this would be to ban children under a certain age from facilities unless accompanied by an adult.

Complaints

It is important for strata communities to be aware that people can make complaints about discrimination, sexual harassment and victimisation to the Queensland Human Rights Commission.

The Commission offers a free and impartial dispute resolution service to help people resolve their complaints. This can be beneficial to both parties to help resolve issues and keep it out of court.

You can also have someone such as a solicitor, advocate or trade union representative make a complaint on your behalf.  It does not cost anything to make a complaint to the Commission, but your complaint must be in writing.

People can also make an application to the Queensland Civil and Administrative Tribunal (QCAT) alleging discrimination, sexual harassment or victimisation.

After reviewing the complaint QCAT may decide and order that a person, group of people or business who the complaint was made against must:

  • stop doing the action that caused the complaint
  • pay compensation
  • pay interest on compensation
  • do specific things to redress the loss or damage suffered
  • make a public or private apology or retraction
  • implement programs to eliminate unlawful discrimination
  • pay the other party’s costs, or
  • declare an agreement is not legally binding.

If you have any queries regarding discrimination or sexual harassment in your community do not hesitate to get in touch and one of our friendly managers will assist you as much as possible.

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