With the right management and support, a mental health condition is often just a part of everyday life for many people. We know that almost half of all Australians experience a mental health condition at some point in their life. The Equal Opportunity Act 2010 recognises mental health conditions as a disability and provides protection from discrimination.
What is disability discrimination?
Disability discrimination is when someone treats you unfairly, including bullying you, because of your disability, including a mental health condition.
Mental health issues are a form of disability
Under Victorian law, disability includes mental health issues.
The ABS 2017–18 National Health Survey showed that one in five Australians had a mental or behavioural condition, which equates to around 1.2 million Victorians.
We know that mental health discrimination is felt deeply across Victoria.
How does the law protect me?
Discrimination is against the law if it happens in an area of public life such as at work, school or university, in a club or sporting organisation, or shops and restaurants.
People who work in these areas have a positive duty to make sure you don’t face discrimination because of a disability. For example:
- employers need to make sure you can safely do the work that your job requires
- schools and other education providers need to make sure you can take part in education programs
- shops and restaurants need to make sure you can access their services.
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’s also against the law to discriminate against you because you have:
- someone who is assisting you, for example a carer or reader
- an assistance dog, including a trained guide dog, hearing dog, mobility assistance dogs, medical alert dogs or psychiatric service dog.
It is also against the law to victimise a person, which means treat them badly or unfairly, because they have made a complaint about discrimination, sexual harassment or vilification, or have helped someone else to 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:
If you wish, someone else can make a complaint for you. Find out how the Commission helps people resolve complaints.
We can also give you information about your rights.
See our referrals page for details of other organisations that can help you with mental health queries.
Mental health discrimination at work
Over a third of complaints that come to us about disability discrimination are work related (34.6 per cent of complaints in 2018-19).
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.
To ensure they are complying with the positive duty, 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.
Examples of mental health discrimination in the workplace
- refusing to consider flexible work arrangements to support a staff member with a mental health condition
- not allowing a staff member to bring their assistance dog to work.
Are there any exceptions to the law?
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.
Find out more about exceptions.
My human rights under the Charter
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.