Equal Opportunity - What real estate agents need to know

Everyone has the right to equal opportunity

One of the most important beliefs in our community is that everyone has the right to equal opportunity ? to live and work in an environment free from unlawful discrimination and sexual harassment. In Victoria, this right is protected by state and federal laws. This brochure describes the combined effect of these laws.

Why is equal opportunity better for business?

Following equal opportunity law is better for business. Discrimination is not only against the law, it can also damage business reputations and staff morale, and trigger costly and time-consuming equal opportunity complaints.

What is unlawful discrimination?

Victoria?s Equal Opportunity Act makes it unlawful to sexually harass others or to discriminate against anyone because of their:

age;
breastfeeding;
impairment/disability;
industrial activity;
marital, parental or carer status;
physical features;
pregnancy;
race;
religious or political beliefs or activity;
sex;
sexual orientation; or
personal association with someone who has one of these protected characteristics

when you are providing them with accommodation.

Accommodation includes:

boarding houses or hostels;
business premises;
camping sites;
caravans or caravan sites;
hotels or motels;
houses or flats;
mobile homes or mobile home sites.

It is also unlawful for people seeking accommodation to sexually harass anyone who is involved in providing accommodation such as owners, real estate agents and staff, building managers and caretakers. A person sexually harasses another if he or she makes an unwelcome sexual advance, request for sexual favours or engages in any other unwelcome conduct of a sexual nature which a reasonable person would have anticipated would offend, humiliate or intimidate the other person.

Other areas of public life where discrimination is unlawful

Sexual harassment and discrimination based on the protected characteristics listed opposite are also unlawful in the following areas of public life:

employment;
provision of goods and services;
education;
sport;
clubs.

It is also unlawful to discriminate when selling or transferring land.

Victimisation is also unlawful

Victimising someone because they have pursued or intend to pursue their rights under the Equal Opportunity Act is unlawful. For example, it would be unlawful victimisation to threaten someone or subject them to any detriment because they made or intend to make an allegation or complaint of unlawful discrimination or sexual harassment, or give related evidence or information.

How can discrimination in accommodation happen?

It happens when accommodation providers such as real estate agents, landlords or vendors:

refuse to sell or rent out a property;
process an application differently from other applications for the same property;
change the terms upon which accommodation is offered such as imposing a higher bond or requiring guarantors;
change the terms upon which accommodation has already been provided;
deny or limit access to a benefit or facility that is available to other tenants;
refuse to extend or renew accommodation;
evict tenants

because of one or more of the characteristics protected by law.

How can you prevent discrimination?

Have policies and procedures in place to help ensure that sexual harassment and discrimination do not occur.

Make sure everyone in the agency is aware of these policies and procedures.

Check any advertisements carefully to ensure that they do not indicate any intention to discriminate.

Only ask applicants questions which are directly relevant to renting or selling a property (for example, the applicant?s ability to pay the agreed rent or price, to look after the property and to abide by general tenancy conditions).

Do not ask applicants questions about their sexual orientation, marital status, political beliefs, parental status or any other personal characteristics protected by law. This includes all questions on application forms.

Are there any exceptions?

There are some exceptions where it is lawful to discriminate in providing accommodation such as:

a person may discriminate in deciding who may share their own home with themself or their relatives;
accommodation may be refused:

to a person with a disability, or on the basis of pregnancy or physical features, if that discrimination is reasonably necessary to protect the health, safety or property of any person, including the person discriminated against;
if the premises are to be used for licensed commercial sexual services;
if the premises are for the welfare of persons of a particular sex, age, race or religious belief;

accommodation may be provided:

to allow educational authorities to cater specifically for students of a particular sex, race, religious belief or age, or for students with disabilities.

Can you refuse to rent to people with children?

Normally, an agent or landlord cannot refuse to rent a property to a prospective tenant because they have a child under 18 years of age living with them.

The agent or landlord can only refuse to rent a property for this reason when:

the premises are usually the landlord?s or a relative?s own home; or
the premises are not suitable for children because of their design or location.

Under the Victorian Residential Tenancies Act a prospective tenant can make an application to the Victorian Civil and Administrative Tribunal if a landlord or agent says the premises are unsuitable for children and the prospective tenant disagrees.

Can someone with a disability make changes to rental accommodation?

A person with a disability can make reasonable alterations to the accommodation to meet his or her special needs if:

the tenant pays for them;
they do not require any alterations to the premises of another occupier;
restoring the accommodation to its previous condition is reasonably practicable in the circumstances;
the tenant agrees to restore the accommodation to its previous condition before leaving and it is reasonably likely that the tenant will do so.

In some cases a property owner may be required to make adjustments to premises to accommodate a person with a disability, but only where this would not cause the owner ?unjustifiable hardship?. To determine whether ?unjustifiable hardship? would be caused all the circumstances must be considered, including any benefit or detriment the adjustments may cause, costs involved and the financial circumstances of the owner.

Are guide dogs covered by a 'No Pets' rule?

No. It is against the law to refuse accommodation to a person with a visual, hearing or mobility impairment because that person has a guide dog. It is also unlawful to require that the dog be kept elsewhere or to charge extra for the dog. This does not affect the liability of the person with the guide dog for any damage caused by the dog.

Who is responsible if an equal opportunity complaint is lodged?

The Individual

Anyone who discriminates or sexually harasses when providing accommodation, goods and services or in employment can be held liable if an equal opportunity complaint is lodged.

Anyone who authorised or assisted the behaviour

A complaint may also be brought against the employer of the individual and any other person who may have authorised or assisted the behaviour.

The Employer/Principal

Employers or principals should be aware that they may also be vicariously liable if an agent, employee or subcontractor discriminates against or sexually harasses another in the course of their duties. In order to avoid liability, principals must show that all reasonable precautions were taken to prevent the discrimination or sexual harassment from occurring. These precautions should include developing an equal opportunity policy, making sure that all staff are aware of this policy and acting on it when discriminatory matters are brought to someone?s attention.

What if my client orders me to discriminate when selecting tenants for their property?

It is irrelevant that a person who has discriminated was acting on the instructions of another person. Therefore, acting on a client?s instructions will not be a defence if a complaint is made.

Your client could well be found responsible for ?authorising and assisting? an act of discrimination and so could also be liable if a complaint is made.

If your client?s instructions are discriminatory, or potentially discriminatory, you should advise them of the responsibilities that you both face as accommodation providers under the Equal Opportunity Act. Again, principals should be mindful of their potential vicarious liability.

What happens if a complaint is made to the Equal Opportunity Commission?

The Commission?s complaint resolution process deals with all complaints confidentially, impartially and at no charge to either party.

Conciliation

The Commission may hold a conciliation conference with the relevant parties. The aim of conciliation is to assist the parties to arrive at a private and confidential settlement.

What might a conciliation settlement include?

The conciliation settlement negotiated by and agreed to by the parties may include:

an agreement to provide or renew accommodation;
an apology;
financial compensation, for example, lost wages, medical expenses, hurt and humiliation;
an undertaking to change the agency?s policies or procedures and to provide training to management and staff.

What if the complaint doesn?t settle at conciliation?

If the complaint is not settled at conciliation, the person who made the complaint can have it referred to the Victorian Civil and Administrative Tribunal. The Tribunal holds public hearings and any decision made will be a matter of public knowledge and reportable in the media. If the Tribunal finds the complaint proven, it may make a wide range of orders including requiring the landlord or agency to stop breaching the law, initiate equal opportunity programs and/or pay compensation.

Where can I find out more?

For more information about your rights and responsibilities under the Equal Opportunity Act, contact:

Victorian Equal Opportunity Commission

Level 3, 380 Lonsdale Street, Melbourne VIC 3000, Tel: (03) 9281 7111, Toll free: 1800 134 142, Fax: (03) 9281 7171, Email: eoc@vicnet.net.au

The Real Estate Institute of Victoria Ltd

335 Camberwell Road, Camberwell VIC 3124, Tel: (03) 9205 6666, Fax: (03) 9205 6699, Email: reiv@reiv.com.au, www.reiv.com.au

The funding for this policy was approved by the Minister for Consumer Affairs and applied from the Estate Agents? Guarantee Fund. September 2000