You are working at the Victorian Equal Opportunity and Human Rights Commission (‘VEOHRC’) as a Legal Officer. You have been asked to prepare some preliminary advice on the following scenario, based on the Equal Opportunity Act 2010: Josef is a very experienced 38 year old administrative worker who has long dreamed of working at KonstructCorp, one of the largest construction companies in Victoria. KonstructCorp has offices in a beautiful heritage building on Collins St. Josef often passes by its reception lobby on his lunch break, admiring the décor and the sense of grandeur it imparts. Through a contact, Josef hears that one of KonstructCorp’s receptionists is about to go on maternity leave, and he makes enquiries about a fill-in position. The HR Manager, Michaela, takes Josef’s call. She asks him about his qualifications, which she acknowledges are impressive.
However, she advises him that the ‘top brass’ at KonstructCorp are very fussy about the appearance of their receptionists, and to date have always selected younger women to fill the relevant roles. As such, Michaela advises Josef that he probably should not bother applying when the job is advertised in a few days’ time. Josef applies anyway and is rejected before the interview stage with the generic explanation that he was ‘not deemed to be the strongest candidate for the role’. Next time he walks past KonstructCorp’s lobby, he sees a new receptionist who is young and female. Incensed, Josef contacts VEOHRC to enquire whether KonstructCorp’s hiring practices for receptionists are discriminatory, and whether there is anything he can do about it. Prepare an advice note for the Principal Legal Officer. You should address the following two questions in your note:
(a) Identify any relevant attributes on the basis of which there may have been discrimination against Josef under s 6 of the Equal Opportunity Act 2010 (Vic), and briefly explain why you have identified these attributes.
(b) If Josef’s matter were to proceed to a VCAT hearing, would Josef be able to make out a case of discrimination under s 16 of the Equal Opportunity Act 2010 (Vic)? Citing relevant Australian authorities on discrimination in hiring practices, explain which test the Tribunal would be likely to apply (including whether Josef’s treatment is likely to amount to direct or indirect discrimination), and what you believe Josef’s chances of success would be.
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