From the Commissioner - Substantive equality and systemic discrimination part 1 - Introduction

News story
This is the beginning of a four-part series on systemic discrimination and substantive equality that will feature in the ‘From the Commissioner’ column every alternative month over the next few months.
Dr John Byrne

In WA we have lived with anti-discrimination laws for 37 years and many are aware of how direct discrimination works - usually a person is treated less favourably because of a prejudice their discriminator may have against people with a protected attribute, for example, race.

At the Commission we say these attitudes are not only unlawful, they are bad for business, so imagine the negative impacts of systemic discrimination on an entire society.

Systemic discrimination falls more into the category of indirect discrimination, when a person, because of their protected attributes, cannot comply with outwardly benign policies and procedures put in place by the discriminator.

For example, a person in a wheelchair can experience direct impairment discrimination if they are turned away from a venue because the operator doesn’t really like having people in wheelchairs in the venue because they ‘take up too much room’.

Systemic discrimination is where there are no building regulations to make door frames large enough for wheelchairs to fit through.

Systemic discrimination occurs when decision-makers do not consider groups with protected attributes, such as an impairment, when they are putting in place regulations, policies, or procedures.

The decision makers may not intend to discriminate, but the lack of consideration may result in discrimination regardless.

Implementing policies and procedures that consider the adverse impact on protected groups, and ensuring barriers are removed, is known as substantive equality.  Organisations that don’t implement substantive equality measures could be missing out on business.

Of course, many may say it is impossible to consider everyone’s needs; however not considering protected attributes may render the organisation’s policies and procedures unlawful under the Equal Opportunity Act 1984.

Consider this: a real estate agent has a policy where they require a rental applicant to provide references from previous property owners in WA before they consider the application.

However, a family that has arrived recently from overseas cannot comply with the policy because their rental history is from another country.

Another group that cannot comply with this policy is a young couple who have previously lived with their parents and have finally decided to move out together.

Both groups have full time secure jobs and money for the deposit; however, they cannot provide the references.

Not only has the real estate agent potentially missed out on two sets of very good tenants for their clients, it has potentially put itself at risk of having indirect race and age discrimination complaints lodged against it.

Substantive equality is not difficult to understand, and as a community we have already accepted substantive equality concepts, such as disability accessible public toilets, women-only gyms, and enhanced pathways to higher education for Aboriginal and Torres Strait Islander people. We also have the building regulations I mentioned previously to allow for people in wheelchairs to access venues.

When more people can access goods and services and participate in society it creates more business opportunities, more jobs, and better socialisation.

I encourage all decision-makers to examine how their policies and practises impact on the public they serve, if not for their clients then for the performance of their organisation.

Page reviewed 6 October 2021