Lesson 2 – Recognising Discrimination, Harassment and Victimisation

2.1 Direct discrimination

Direct discrimination generally occurs when someone is treated less favourably because of a protected characteristic.

This may involve:

• A characteristic the person has;
• A characteristic the employee believes they have; or
• A protected characteristic of someone connected with them.

Examples

Potential direct discrimination may include:

• Refusing a viewing because of an applicant’s race;
• Rejecting a tenant because she is pregnant;
• Treating a same-sex couple less favourably;
• Refusing to deal with a transgender customer;
• Rejecting someone because their child is disabled; or
• Applying additional checks based on a person’s accent or nationality.

Government guidance describes direct discrimination as treating someone worse because they have, are perceived to have, or are connected to someone with a protected characteristic.

2.2 Indirect discrimination

Indirect discrimination may arise where a rule or procedure:

• Applies, or would apply, to everyone;
• Places a group sharing a protected characteristic at a particular disadvantage;
• Disadvantages the individual concerned; and
• Cannot be objectively justified as a proportionate means of achieving a legitimate aim.

Examples

A potentially indirectly discriminatory practice could include:

• Accepting applications only through an inaccessible online system;
• Offering viewings only at inflexible times;
• Requiring every customer to communicate by telephone;
• Requiring a document where lawful alternatives are available; or
• Applying an unnecessarily restrictive selection criterion.

A rule can be indirectly discriminatory even if no one intended to discriminate.

2.3 Harassment

Harassment generally involves unwanted conduct related to a relevant protected characteristic that has the purpose or effect of:

• Violating someone’s dignity; or
• Creating an intimidating, hostile, degrading, humiliating or offensive environment.

Examples may include:

• Racist jokes;
• Mocking an applicant’s accent;
• Offensive comments about disability;
• Sexual comments during a viewing;
• Deliberately humiliating a transgender customer;
• Ridiculing religious clothing; or
• Sending discriminatory messages.

An employee cannot assume that conduct is acceptable simply because it was intended as a joke.

2.4 Victimisation

Victimisation occurs when someone suffers a detriment because they have carried out, or are believed likely to carry out, a protected act.

A protected act may include:

• Complaining about discrimination;
• Supporting another person’s complaint;
• Giving evidence;
• Alleging that equality law has been breached; or
• Bringing equality proceedings.

Example

An applicant complains that a negotiator made a discriminatory comment. The negotiator then cancels the applicant’s remaining viewings because they are considered a “troublemaker.”

This may amount to victimisation.

2.5 Employee responsibilities

Employees should:

• Avoid discriminatory comments or conduct;
• Challenge inappropriate behaviour where safe to do so;
• Report concerns;
• Preserve relevant records;
• Avoid retaliating against a complainant;
• Continue providing a professional service; and
• Follow MyEstate’s complaints and escalation procedures.

Lesson 2 key point

Discrimination may result from a deliberate decision, an assumption or an apparently neutral procedure that creates an unjustified disadvantage.