From the Commissioner - Discrimination in the time of COVID

News story
We are now well into our second year of living with COVID-19. Western Australia has not been as severely impacted as other parts of the world, but it is still a concern for all of us.
Dr John Byrne

Since the pandemic began, the Equal Opportunity Commission has received over a hundred COVID-19 related enquiries and complaints.

Most have been regarding face masks as part of restrictions during and post lockdowns.

There have been recent media reports of the introduction of mandatory vaccination requirements in various situations.

Mandatory vaccination may result in allegations of discrimination on the ground of impairment, particularly in the areas of employment, access to places and goods and services.

As with other discrimination complaints, the complainant would have to show their impairment prevented them from receiving the vaccine. That may require a letter from a doctor.

This is also the case for masks. The complainant needs to have provided the alleged discriminator with evidence of an exemption from wearing a mask for the complaint to be successful at the Commission.

Here are examples of two recent mask exemption complaints received at the Commission with very different outcomes.

A man with asthma was required to wear a mask to a venue even though he provided a medical letter confirming an exemption.

This complaint resolved with the respondent apologising and developing policies and procedures to accommodate patrons with medical exemptions, which included training for staff.

This contrasts with another mask complaint received where a woman alleged impairment discrimination when she was denied access to a store because she refused to wear a mask.

She claimed she had an impairment that exempted her from wearing a mask, but when store staff asked her for evidence, she refused saying her medical information was none of their business.

When the Commission received the complaint, the woman was advised she would need to provide evidence that she was exempt. When this was not produced the complaint was dismissed by the Commissioner.

Potential complainants need to be aware all complaints are investigated at the Commission and for every complaint the process is thorough and impartial.

The complaint needs to be lodged under a ground and area of the Equal Opportunity Act 1984 (the Act). Sometimes what someone may consider unfair or ‘their right’ is not necessarily unlawful under the Act.

During the pandemic, there is merit in public policy relating to masks and vaccination, even if there is some impact on people’s human rights.

However, I encourage law makers, employers, public authorities, and service providers to allow exceptions for people who demonstrate a reason supported by the medical profession.

The Australian Human Rights Commission website has more information on protecting public health and protecting human rights during COVID-19.

Here in WA our enquiry line is 9216 3900 and is open Monday to Friday from 8.30am to 4.30pm. It has Equal Opportunity Commission officers who can assist you with any enquiries you may have.

Page reviewed 7 September 2021