What is positive duty?
Positive duty requires you to take reasonable and proportionate measures to eliminate discrimination, sexual harassment and victimisation as far as possible.
Under the Equal Opportunity Act 2010, accommodation providers in Victoria have a positive duty to eliminate discrimination, sexual harassment and victimisation.
Complying with the positive duty will help you avoid potential discrimination complaints and take us a step closer to creating equal opportunity for everyone in Victoria.
Who does the positive duty apply to?
Positive duty applies to everyone who already has responsibilities under the Equal Opportunity Act including landlords, tenancy database operators, and real estate agents.
- If you are a landlord, the positive duty applies because you are an accommodation provider.
- If you are a real estate agent or tenancy database provider, it applies to you both as a service provider and as an employer if you employ staff in your business.
The Commission has created a suit of free online tools to help employers understand and comply with the Equal Opportunity Act. Access the toolkits online at humanrightscommission.vic.gov.au/employerstoolkits.
How do I meet my legal obligations?
The law requires you to be proactive about discrimination and prevent discriminatory practices, rather than just responding to complaints of discrimination that may occur.
What are 'reasonable and proportionate measures'?
The law states that the reasonable and proportionate measures needed to satisfy the positive duty will depend on the size and resources of each organisation.
Factors that must be considered include:
- the size of the business or operations the resources of the business
- the nature of the business the business and operational prioritiesthe practicability and cost of the measures in question.
What sort of things should I do to comply with the law?
For landlords who manage their properties themselves:
- Only seek relevant information from applicants.
- Don't make decisions based on protected characteristics such as race, age, sex or disability.
- Make sure your agent knows you expect them to comply with the law.
For real estate agents:
- Provide training and have written policies for your staff about the Equal Opportunity Act and unlawful discrimination.
- Review your application forms to ensure they are provided in accessible formats and do not seek irrelevant information from prospective tenants.
- Look for ways that people applying for properties may be unfairly disadvantaged in the application process and interviews and adopt practices to minimise the risk of discrimination.
- Do not accede to landlord requests to discriminate.
Requesting information from applicants
Rental agents and landlords have a legitimate interest in finding tenants who will not damage the property and can pay the rent. However, they can do so without engaging in unlawful discrimination or allowing irrelevant personal characteristics to influence their decisions.
Under the Equal Opportunity Act, it is unlawful to collect information that could be used to discriminate against a person, whether orally or in writing. In planning to meet the positive duty, providers of private rental accommodation should carefully consider what information they need from applicants and why. For example, you do not need to know about someone's sexual orientation or marital status to determine whether they will be able to pay the rent and maintain the property.
In planning to meet the positive duty, you need to be aware that you could be liable for actions carried out by your employees. To avoid vicarious liability, you must be able to show you that you took reasonable precautions to prevent someone else acting in a discriminatory way.
Authorising and assisting discrimination
It is against the law for you to request, instruct, induce, encourage, authorise or assist another person to discriminate. This means it is against the law for a landlord to request that a real estate agent carry out a discriminatory request and for a real estate agent to carry out such a request. In this situation, both can be liable and who is the principal actor will depend on the circumstances.
Consider the scenario below:
A real estate agent puts forward an application to a landlord, but the landlord is reluctant to accept their recommendation. The conversation could go something like this:
Landlord: '...but it's a one bedroom. Why are two women applying?'
Rental Agent: 'I've done checks and they have a great rental history and a solid combined income.'
Landlord: 'I don't want people like that in my house.'
Rental Agent: 'Having looked at all the applications, I think these two were the most suitable applicants. I'm concerned you could be missing out on tenants who'll really enjoy and look after this property. It's part of my role to manage our legal obligations as well – so if it's their sexual orientation you're assuming or you're concerned about, you need to remember we could both be liable for discrimination if we don't offer them the property for that reason.'
Tips to meet your positive duty
- Understand the law.
- Look at your policies, practices and procedures (written and unwritten).
- Look at your client base and consider how you can improve your services to reach groups who may be unfairly excluded.
- Set out your plan of action. Take an approach that is relevant to your size, resources and functions.
- Develop new policies and change practices where needed.
- Implement your plan and train your staff.
- Monitor what happens and revisit your approach where necessary.
Examples of positive duty in practice
Mark is the manager of a real estate agency and receives an informal complaint about one of his staff members, Bill, from a prospective tenant (Amol) who says Bill treated him unfairly when applying for a property because of his race.
Amol has a heavy accent and says that during an early interview and application process Bill was patronising to him and quickly drew his attention to a section in the rental form asking about his passport details and citizenship status. According to Amol, Bill asked him 'how long he had been here' and said 'we have a lot of applicants who are keen for the property and the owner wants someone who will stick around.'
The agency identifies a risk that complaints of discrimination could occur. In order to minimise this risk, Mark decides to train all staff about Victoria's Equal Opportunity Act. Mark also:
- conducts a review of rental application forms to make sure that only relevant information is collected
- reviews existing processes for seeking information from prospective tenants, including when interviews and phone discussions occur
- provides cultural awareness training for all staff
- makes sure all new staff are aware of their obligations under the law
- makes sure all staff are aware of the agency's equal opportunity policy to ensure it is being implemented in practice.
These measures are likely to constitute reasonable and proportionate measures under the positive duty.
What are the consequences of non-compliance?
If you deny someone a rental property because of their race, sex, age, marital status, disability, sexual orientation or other legally protected characteristic, then the person can make a complaint to the Victorian Equal Opportunity and Human Rights Commission.
If someone makes a complaint against you and the Commission accepts the complaint we will give you a copy of it and ask for your comments. The Commission helps to resolve complaints of discrimination by conciliation. Complaints can be resolved in many different ways, for example by an apology, a change in policy, staff training or compensation.
The Commission and positive duty
The positive duty encourages organisations to work with the Victorian Equal Opportunity and Human Rights Commission before any complaints are made.
We provide assistance in a number of ways, including:
- promoting awareness about the law and good practice
- delivering general education and training workshops
- delivering tailored education and training specific to your organisation
- working in partnership to encourage and support good practice
- reviewing policies and practices to give guidance
- providing a free dispute resolution service
- monitoring and enforcement.
An individual cannot pursue a complaint against a landlord or agent for not meeting its positive duty. However, if the Commission becomes aware of a serious issue that relates to a group or class of people, we may decide to investigate the matter further.
You can contact us for more information about the positive duty or to discuss any aspects of your organisation's equal opportunity plans.