What is discrimination in education?
Discrimination occurs when someone is treated unfairly because of a protected attribute, for example, their age, sex, race, impairment, religion, pregnancy, parental status, or sexual orientation.
The Anti-Discrimination Act prohibits discrimination in education. This includes in relation to:
- admission and enrolment processes
- terms of admission and enrolment
- variation of the terms of enrolment
- denial or limitation of benefits associated with enrolment
- exclusion or suspension of students
- assessment and examinations
- access to resources and facilities
- treatment of a student in relation to training or instruction.
The Act also prohibits sexual harassment, vilification, and victimisation, and other objectional conduct in educational settings.
Students’ rights and responsibilities
Students have the right to learn in an environment free from discrimination, harassment, vilification, and victimisation.
Workers’ rights and responsibilities
The Act protects education workers by prohibiting discrimination, sexual harassment, vilification and victimisation and other objectional conduct at work.
Responsibilities of education providers
Schools, universities, training organisations, and those managing these institutions have a legal responsibility to provide safe and fair learning environments where students have equal opportunities.
All workers, including teachers and other school staff, have the right to work in an environment free from unlawful discrimination, sexual harassment and vilification.
Liability for discrimination in education settings
Educational institutions may be held vicariously liable for the actions of their workers and agents if they do not take reasonable steps to prevent unlawful discrimination, sexual harassment, and vilification.
This means that if you are being discriminated against, sexually harassed or vilified while working or learning in an educational setting, you may be able to lodge a complaint against the educational institution, as well as the individual subjecting you to this behaviour.
It doesn’t matter if someone is on a contract or an employee, they might still be considered an agent of the educational institution.
An educational institution cannot avoid vicarious liability simply because it was not aware of the unlawful discrimination, sexual harassment or acts of vilification done by its employees or agents.
When discrimination may be lawful (Exemptions)
There are some circumstances when discrimination in education may be allowed. These are called ‘exemptions’.
Exemptions apply only in limited situations and only when they are reasonable.
Examples include:
Welfare and equal opportunity measures
Programs designed to promote equal access or reduce disadvantage for specific groups are lawful, for example special tertiary education entry programs for First Nations persons which recognise the severe disadvantage they experience compared to others in terms of access to education.
Single sex and religious schools and schools for children with general or specific disabilities (impairments)
A school or educational institution may discriminate on the basis of sex, religion, or disability (impairment) when enrolling children in a school established wholly or partly for students of a particular sex, religion, or for students who have a general or specific disability. For example, an Islamic school may offer enrolment only to Muslim students.
Age-based admissions
Schools and educational institutions can set a minimum qualifying age for admission.
Sporting activities
Participation in competitive sporting activities involving people over the age of 12, may be restricted to:
- either male or female
- people who can effectively compete
- a specified age or age group
- people with a specific or general disability (impairment)
For example, a tennis competition can be restricted to players who use wheelchairs.
It is not lawful to restrict participation in competitive sports on the basis of someone’s sex characteristics.
Unjustifiable hardship
The Anti-Discrimination Act requires that special services or facilities (also called reasonable accommodations or reasonable adjustments) be provided to people with disability (impairment). Where special services or facilities are not provided, this may be indirect discrimination on the basis of disability.
For example, a dyslexic child struggles to complete written examinations. A reasonable accommodation could be to provide the student with the option to complete examinations verbally.
However, an education institution is not obliged to provide special services or facilities where this would impose an unjustifiable hardship on them.
Whether supplying special services or facilities imposes an unjustifiable hardship depends on:
- the type of service or facility being requested
- the cost of providing this
- the number of people who would benefit or be disadvantaged by it
- the disruption that might be caused by providing the service or facility; and
- the type of benefit or detriment to everyone concerned.
What you can do
If you believe you’ve experienced discrimination in an educational setting, you can make a complaint to the Queensland Human Rights Commis