Ageing, Disability and Home Care, Department of Human Services NSW Discrimination and Harassment Fact Sheet November

2010

Discrimination and Harassment

As an agency of the Department of Human Services, Ageing, Disability and Home Care (ADHC) is committed to achieving the best outcomes and quality of service for vulnerable clients. All staff must conduct themselves with the highest possible levels of courtesy, professionalism, honesty and empathy to safeguard the wellbeing of all clients and other employees. This Fact Sheet applies to all ADHC staff, including all Home Care staff, SES officers, agency staff, contractors, volunteers, students, members of ADHC committees, and staff of the Guardianship Tribunal and the Disability Council. This Fact Sheet should be read in conjunction with the Bullying Fact Sheet and the Dignity and Respect: Anti-Bullying, Discrimination and Harassment Policy.

What is discrimination?
Discrimination is where a person is treated unfairly compared to someone else, because of their sex, pregnancy, race, age, marital status, homosexuality, disability, transgender status, or carers responsibilities. Discrimination is against the law. Discrimination may be deliberate. It may also be the result of inadvertent practices that appear to be fair to everyone but in fact have an unfair or unequal impact on certain groups. Types of discrimination o Age can include from older to younger person or vice versa. o Sex can include: Gender whether a person is male or female Homosexual status Marital status whether a person is single, married, in a de facto relationship, separated, divorced or widowed Pregnancy whether a woman is pregnant, might become pregnant or has been pregnant Transgender status whether a person has lived, or wants to live, as a member of the opposite gender (sex) to their birth gender Carers responsibilities whether a person has the responsibility to care for their child, the child of their partner, any adult of whom they are the legal Contact: Your local Dignity and Respect Contact Officer, or ADHC or NSW Businesslink HR Adviser
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guardian, their current or former partner, grandchild, parent, grandparent or sibling. Discrimination can occur if a manager does not reasonably take into account an employees carers responsibilities when planning rosters, deciding start or finish times, or handling requests for leave. It can also happen if a job applicant with carers responsibilities is considered less favourably for a position. o Race can include a persons race, colour, descent, national origin or ethnic origin. o Disability can include physical, intellectual or learning disability, mental illness, physical illness or infectious diseases such as Hepatitis A, B or C, or HIV/AIDS. o Direct discrimination where a person is treated less fairly on the basis of an attribute, for example, sex, race or disability, than someone without that attribute. An example of direct discrimination is refusing to employ someone who has carers responsibilities because you think they will be less reliable. o Indirect discrimination where a requirement or rule is the same for everyone, but actually has a discriminatory effect on a particular group, for example, a requirement that only people with 10 years experience or more can be promoted into managerial roles, unless it can be shown that this is reasonable. o Other types of discrimination can include discrimination due to trade union activity or inactivity, religious or political belief or lack of religious or political belief, irrelevant criminal record or irrelevant medical record.

What is harassment?
Harassment is a form of discrimination. Under NSW law, harassment is against the law and is any form of behaviour that you do not want and: o offends, humiliates or intimidates you, and o targets you because of your sex, pregnancy, race, age, marital or domestic status, homosexuality, disability, transgender (transsexual) status or carers responsibilities. Sexual harassment is any form of sexually related behaviour that you do not want and, in the circumstances, a reasonable person would have expected you to be offended, humiliated or intimidated. Anyone can be subject to harassment, including people of any age or race, women or men. Harassment is often about one person, or group of people, using power inappropriately over another person or group of people. But harassment can also occur between people when there is no power relationship. It may simply create a hostile environment. The victim does not have to say no for harassment to have occurred. The law recognises that in some instances it may be difficult to tell the harasser to stop. It is also irrelevant that the behaviour may not offend others or has been accepted by the victim in the past. One incident is enough to be harassment the behaviour does not have to be ongoing. It is also against the law for a person to be harassed because of their relationship to, or association with, a person of a particular sex, race, age, marital status, homosexuality, disability, transgender status or carers responsibilities. Some types of harassment such as sexual assault, stalking and harassing phone calls are also against the criminal law, which means the police may prosecute the person who did it.

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Examples of harassment
There are many behaviours that could be harassment. The basic rule is that if someone finds it harassing then it could be harassment. The following behaviours may be harassment: o material that is racist, sexist, sexually explicit, homophobic and so on, that is displayed in the workplace, circulated on paper or by email, or put on a computer or fax machine or on the internet, or in someones workspace or belongings o verbal abuse or comments that put down or stereotype people because of their sex, pregnancy, race, age, marital status, homosexuality, disability, transgender status or carers responsibilities o obscene or racist, sexist or homophobic telephone calls, letters, faxes, emails, language, illustrations in any work-sponsored publication, or in social media such as Twitter, Facebook or Myspace o offensive jokes based on sex, pregnancy, age or race o offensive hand or body gestures based on sex, pregnancy, age or race o ignoring, isolating or segregating a person or group because of their sex, pregnancy, age or race o sexual or physical contact such as slapping, kissing, touching or hugging o intrusive questions about sexual activity o sexual or suggestive remarks, or unwelcome wolf whistling o imitating someones accent or disability.

Victimisation and vilification

Victimisation is the act of harassing or treating someone unfairly because they have made or intend to make a report about discrimination, harassment, bullying or about a protected disclosure. Examples of victimisation include unwarranted disciplinary action, isolating or ignoring the complainant, forcibly transferring the complainant, or failing to promptly or adequately investigate allegations. Vilification is generally any act that occurs publicly which could incite or encourage others to hate, have serious contempt for, or have severe ridicule of a person or group of people, because of their race, colour, nationality, descent, ethnic, ethno-religious or national origin, homosexuality, HIV or AIDS status or transgender status. Vilification can occur in many areas and is unlawful. Examples of vilification include: racial vilification, eg. racist graffiti homosexual vilification transgender vilification HIV/AIDS vilification, that is, targeting a person or group due to their actual or perceived status as a person with HIV/AIDS. Serious vilification can amount to a criminal offence. o o o o

Case study 1 Discrimination

An employee who has a job that involves some manual labour tells her female supervisor that she is pregnant. The supervisor immediately asks her for a medical certificate to prove she is pregnant and also tells the employee that she will be removed from her current position to a lower paid one that is more suitable for a pregnant woman.

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The employee complains to her regional manager who investigates the matter in consultation with HR advisers. The regional manager finds that the supervisor is discriminating against the employee on the grounds of sex (pregnancy). The parties are brought together to resolve the matter. The employee is offered the opportunity to remain in her position with the full support of her supervisor and regular reviews by the regional manager to stay on in her position.

Case study 2 Harassment

An employee has a medical condition that, on occasions, requires them to be absent from work. Medical certificates for the condition are provided to the employee's supervisor. The supervisor is aware of the condition. The sick leave taken is within the employee's entitlement. The supervisor constantly questions the employee regarding the medical condition and contacts the employee at home when on sick leave. This is a form of harassment on the grounds of disability.

Case study 3 Victimisation

Employees of a particular workplace (could be office, group home, large residence) regularly arrange social outings. Employees openly discuss their socialising in front of all work colleagues. One staff member has a different ethnic and religious background to the other employees, and makes a complaint to her manager about being discriminated against by some of her colleagues. After making the complaint, the staff member is openly excluded from being invited to social occasions by her work colleagues. The excluded employee is the subject of victimisation.

How to get more information

ADHC is committed to dealing with incidents of discrimination and harassment quickly, fairly, confidentially, impartially and without victimisation. ADHC encourages all employees to report incidents. In the first instance, talk to: o your local Dignity and Respect Contact Officer o your manager or another manager you trust, such as your Regional or Area Manager, Central Office Director, or CEO Large Residences o your local ADHC or NSW Businesslink HR Adviser o Employee Assistance Program, tel: 1800 337 068 o Ethics and Professional Standards Unit, tel: 8270-2081 o your union representative. Details are in the Dignity and Respect: Anti-Bullying, Harassment and Discrimination Policy. In some cases, areas will overlap. For example, serious harassment may also be misconduct or even a criminal offence such as assault. If in doubt, talk to a contact person. You can also lodge an external complaint about discrimination or harassment at any time by contacting one of these organisations: o Anti-Discrimination Board, tel: 9268 5544 or 1800 670 812 (TTY 9268 5522), Newcastle 4926 4300, Wollongong 4224 9660, www.lawlink.nsw.gov.au/adb o Human Rights and Equal Opportunity Commission, tel: 1300 369 711 (TTY 1800 620 241), www.humanrights.gov.au.

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Assessment Tool Interpersonal and behavioural issues

This tool is designed to help you assess an interpersonal problem or conflict that involves an employee, client, group of people or member of the public. This tool should only be used as a guide and in conjunction with the relevant policy. A. Interpersonal conflict Minor interpersonal conflict can be dealt with through local management resolution. See the ADHC Grievance Policy and talk to your manager or next highest manager for guidance. You can also contact the Employee Assistance Program on 1800 337 068. B. Bullying, discrimination and harassment Harassment, discrimination and bullying are higher level issues that all involve behaviours that can harm, intimidate, threaten, undermine, offend, degrade or humiliate, and undermine a persons right to dignity and respect. Harassment or discrimination Are always linked to anti-discrimination laws and tend to focus on unfair, unwanted, offensive and intrusive treatment or behaviour based on ones gender, race, age, disability or sexual orientation Discrimination can be direct or indirect, harassment tends to be relatively direct May be a single incident or series of incidents Bullying Is usually not strongly linked to the grounds for discrimination - is linked to OHS laws and focuses on a persons right to work in a safe workplace

Tend to focus on individuals for what they are, eg. female, disabled The person being harassed or discriminated against knows almost straight away they are being harassed Almost always have a strong clear focus, eg. sex, race, age, disability Everyone can recognise harassment, especially if there is assault or sexual assault Harassment often reveals itself through use of recognised offensive words

Can be direct or indirect, and by one or more persons Usually repeated behaviour. Tends to be an accumulation of small incidents, each of which, when taken in isolation and out of context, may seem trivial Anyone will do The person being bullied may not realise they are being bullied for weeks or months, until there is a moment of enlightenment The focus is on competence (envy) and popularity (jealousy) It is hard to recognise bullying

There's often an element of possession, eg. stalking Can have a strong physical component, eg. contact and touch, or intruding into personal space or possessions
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Tends to fixate on trivial criticisms and false allegations of underperformance. Offensive words rarely appear, although swear words may be used when there are no witnesses Phase 1 of bullying is control and intimidation. When this fails, phase 2 is elimination of the target Usually emotional or psychological, eg. criticism, but may become physical later

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Harassment or discrimination Often is for peer approval, bravado, macho image, etc Can take place both in and out of work The harasser often perceives their target as easy, albeit sometimes a challenge Are often used for domination for superiority The harasser often lacks self-discipline.

Bullying Tends to be secret behind closed doors with no witnesses Takes place mostly at work The target is seen as a threat who must first be controlled and intimidated, and if that doesn't work, eliminated Bullying is for control of threat (of exposure of the bully's own inadequacy) The bully is driven by envy (of abilities) and jealousy (of relationships).

These matters should be dealt with by a Regional or Area Manager, Central Office Director, Chief Executive Officer Large Residences Metro or Hunter, Manager Riverside Centre, Registrar Guardianship Tribunal, or above; or Chief Executive for Disability Council staff. For more information, contact a Dignity and Respect Contact Officer in your region, and see the Dignity and Respect: Anti-Bullying, Harassment and Discrimination Policy.

C. Protected disclosure If the matter involves alleged corrupt conduct, maladministration or serious public waste, it could be a protected disclosure. See the Protected Disclosures Policy and report the matter to EPSU or to a Protected Disclosures Officer, eg. Executive Director, Strategic Human Resources.

D. Crime and serious misconduct The most serious matters can involve any of the following: 1. a child or person under 18 2. potential or alleged violence, assault, stalking or any other crime 3. alleged client abuse or mistreatment 4. theft or misappropriation or other misuse of ADHC funds, property, IT systems, time, corporate knowledge or the employees position 5. theft or misappropriation or other misuse of client funds or property 6. fraudulent conduct or behaviour or any kind 7. any incident involving an employee that requires a report to Police 8. serious breach of ADHC policies, including ADHCs Code of Conduct 9. any criminal proceedings or possible criminal behaviour against an employee whether or not work related, including Apprehended Violence Orders. In all these cases, report the matter immediately to your Regional or Executive Director, or to the Ethics and Professional Standards Unit.

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Workplace concerns where to get help and advice

Grievance Protected disclosure Misconduct Bullying Discrimination Harassment

Can include conflict, award dispute, work environment problem or OHS issue

Can include corrupt conduct, maladministration or public waste

Can include client mistreatment, theft, fraud, child protection matters, crime or serious breach of ADHC policies

Is repeated, unwelcome, offensive, intimidating behaviour

Can be on grounds of sex, race, age, disabilities and others

Is unwelcome and offensive behaviour due to a persons sex, age, race or disability

Lodge a grievance report with manager and see the Grievances Policy

Report to a Protected Disclosures Officer and see the Protected Disclosures Policy

Lodge report with senior manager or EPSU

Lodge report with a Regional Manager or appropriate party and see Bullying Fact Sheet

Lodge report with a Regional Manager or appropriate party and see Discrimination an Harassment Fact Sheet

Lodge report with a Regional Manager or appropriate party and see Discrimination and Harassment Fact Sheet

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Workplace concerns where to get help and advice

Potential misconduct
- client abuse, theft, child protection matter, crime or serious breach of ADHC policy. See Regional/Executive Director or EPSU.

Discrimination
unfair treatment due to sex, age, race or disability. See Discrimination and Harassment Fact Sheet, and Dignity & Respect Policy.

Grievance
- conflict, award dispute, work environment problem or OHS issue. See Grievances Policy.

What is your concern?

Harassment Protected disclosure

corrupt conduct, maladministration or public waste. See Protected Disclosures Policy. unwelcome, offensive behaviour due to sex, age, race or disability. See Discrimination and Harassment Fact Sheet, and Dignity & Respect Policy.

Bullying
repeated, unwelcome, offensive or intimidating behaviour. See Bullying Fact Sheet, and Dignity & Respect Policy.

The above Fact Sheets and policies are on the intranet.

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