Disability discrimination and vilification

Disability discrimination is when someone treats you unfairly, including bullying you, because of your disability.

Under Victorian law a disability is defined as:

• the total or partial loss of a body part or a body function like mobility, sight or hearing
• disfigurement
• mental health disorders
• learning difficulties.

The law protects people who have a disability now or had one in the past. This includes people who have previously had major health issues, including depression and anxiety. It also protects people who may have a disability in the future because of an existing medical condition such as Multiple Sclerosis, HIV/AIDS or Hepatitis C.

It’s also against the law to discriminate against you because you have:

• an assistance aid, such as a wheelchair, walking frame or oxygen tank
• someone who is assisting you, for example, a carer or reader
• an assistance dog, such as a trained guide dog, hearing dog, mobility assistance dogs, medical alert dogs or psychiatric service dog.

Examples of disability discrimination 

• A school policy not allowing students with disabilities to go on excursions.
• A shop only accepting a driver’s licence as ID.
• A gardening business dismissing a staff member who broke his arm while on leave.
• Insurance policies that have a blanket ban on mental health conditions.

Discrimination is against the law if it happens in an area of public life such as:

• work 
• school, TAFE or university 
• a club or sporting organisation 
• shops and restaurants 
• aged care, hotels or rental properties. 

Under the Equal Opportunity Act, duty holders like employers, schools, and goods and service providers have a positive duty to make sure you don’t face discrimination, sexual harassment and victimisation.

It is also against the law to victimise a person, which means treat them badly, because they have made complaint about discrimination or helped someone else make a complaint.

 

You can make a complaint

Get help from the Victorian Equal Opportunity and Human Rights Commission.

You can make a complaint to us if you think you have experienced:

• discrimination 
• sexual harassment 
• victimisation 
• vilification. 

If you wish, someone else can make a complaint for you. Find out how we help people resolve complaints.

We can also give you information about your rights.

The law requires people to make  adjustments to help support and include people with disabilities, where reasonable. For example:

• wheelchair ramps at schools
• accessible bathrooms in office buildings
• hearing loops in banks.

The law allows for consideration of expense and effort. If complying with the law requires a large cost or disruption, the employer, school or business may be exempt.

While a person is responsible for their own unlawful behaviour, employers can also be held responsible.

Under the Equal Opportunity Act, employers have a positive duty to eliminate discrimination, sexual harassment and victimisation as far as possible.

Victoria is unique in having a positive duty, which creates an opportunity to prevent unlawful behaviour. It helps organisations put a healthy workplace culture in place, just as occupational health and safety laws require employers to take appropriate steps to ensure injuries don’t occur.

Organisations should also put measures in place to ensure that complaints are responded to swiftly and appropriately when they do arise.

The positive duty applies to employers of all sizes, regardless of whether they are a major company or a small cafe, and covers all types of workers:

• full-time, part-time and casual employees
• agents and contract workers
• trainees and apprentices.

It applies to all stages of employment, including:

• advertising jobs and recruitment 
• returning to work after injury, illness or pregnancy 
• dismissal and retrenchment.

See our page on disability and the workplace for information on whether you need to tell your employer about your disability, and how your employer can help you do your work safely.

Examples of disability discrimination in the workplace 

• Not considering a job applicant who uses a mobility scooter.
• Dismissing an employee after finding out that she claimed workers’ compensation in her last role.
• Not allowing a staff member to bring their assistance dog to work.
• Bullying a staff member with an intellectual disability
• Not reasonably considering or providing alternative or light duties to an injured employee, whether or not their injury occurred in the workplace.

The Equal Opportunity Act 2010 protects you from vilification, more commonly known as hate speech or hateful behaviour because of your disability, gender identity, race, religious belief, sex, sex characteristics and sexual orientation, or personal association with someone who has one of these protected characteristics.

Vilification is:

1. encouraging hatred in others– incitement – behaviour likely to incite hatred in others because of a person or group’s protected attribute.
2. hate speech or hateful behaviour that a reasonable person from the target group is likely to consider to be hateful. The basis for the hateful behaviour must be because of a person’s protected attributes.

For either type of vilification, the behaviour must be public, whether online, in person, verbal or written.

If comments, jokes or other acts related to gender identity don’t meet the definitions of vilification, they could still be the basis for a complaint of discrimination if they take place in one of the areas of public life covered by the Equal Opportunity Act.

You may complain about vilification based on more than one attribute   

People can often be vilified because of more than one attribute they hold. For example, a woman with a disability who is vilified because of her sex and her disability.

   

 

There are some exceptions in the Equal Opportunity Act that mean it’s not against the law to discriminate in particular circumstances. For example, discrimination is not against the law if there is a real risk to someone’s health, safety or property. 

There are also exceptions in the Equal Opportunity Act that  permit vilifying conduct in certain circumstances. For example, vilification may not be against the law when it is reasonable and done in good faith in the course of a performance.  

Find out more about exceptions.  

Every Victorian has the right to equal and effective protection against discrimination, and to enjoy their human rights without discrimination. 

Victoria’s Charter of Human Rights and Responsibilities contains 20 basic rights that promote and protect the values of freedom, respect, equality, and dignity. 

The Victorian Government, local councils and other public authorities must always consider Charter rights, including the right to equality, when they create laws, develop policies and deliver their services. 

Find out more about your human rights under the Charter and what to do if you think they have been breached.