Thou shalt not discriminate: moving from a negative prohibition to a positive obligation on business to tackle discrimination

Abstract

ABSTRACT In Australia, businesses—which are variously employers, educational institutions, and service providers—are prohibited from discriminating against their employees, students, and customers. If they do so, the individual can make a claim and receive redress. Various problems and limitations have been identified with this approach to addressing discrimination and inequality. Most relevantly, it is privatised, relies on the individual for enforcement, and does not impose a proactive obligation on businesses. However, there are laws at both the Commonwealth and the state and territory levels that require businesses to address discrimination proactively, rather than wait for a claim to be made. For example, in Victoria, an employer is required to accommodate an employee or potential employee with disability, provided that doing so is reasonable. Failure to do so would amount to discrimination. This article maps the various positive obligations imposed on businesses in Australia that are intended to address discrimination and promote equality. It focuses on Victorian legislation, which contains innovative mechanisms to promote substantive equality, and explores the impact of these mechanisms empirically.