Indirect Discrimination

Tribunal dismisses International Soccer Star’s allegations of “Indirect Discrimination”

A Tribunal has found that the Football Federation of Australia (the Football Federation) did not discriminate against an elite member of the Australian women’s soccer team (the Matildas) after she was required to pay child care costs associated with a Matildas tour to the USA.  The women’s soccer star was paid about $2,440 for the tour and her child care costs were estimated at double that amount.

The soccer star argued that the Football Federation’s decision not reimburse the child care costs amounted to “indirect discrimination”. However, the Tribunal found that although the Football Federation was “mean spirited” and “inflexible”, its conduct was not a technical breach of “indirect discrimination” provisions under the NSW Anti-Discrimination Act 1977 (which are generally mirrored in the WA Equal Opportunities Act 1984).

How “Indirect Discrimination” Works
Under anti-discrimination legislation, a perpetrator engages in “indirect discrimination” against an aggrieved person if, on the ground of the aggrieved person’s responsibilities as a carer, the perpetrator requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have such responsibilities comply or are able to comply.

Indirect discrimination is also prohibited on the grounds of other protected attributes (such as disability, age, etc.).

The Soccer Star’s Arguments
The soccer star argued that the Football Federation imposed a “requirement or condition” as follows:

That players undertaking the tour be wholly responsible for any alternative carer arrangements occasioned by the tour and the costs thereof (the Requirement).

The “Comparator Test”
The established approach taken by the courts in “indirect discrimination” cases to set up a comparator group and to ask whether it was easier for members of the comparator group to comply with the requirement. In this case, the obvious comparator group was “players without carer’s responsibilities” (Comparator Group). The comparator test would involve asking whether it was easier for members of the Comparator Group to comply with the soccer star’s stated Requirement.

The Findings
However, the Tribunal found that the Requirement put forward by the Soccer Star was not a proper requirement under the NSW Act because the “comparator test” did not produce any fruitful result.

Of the “comparator test”, the Tribunal stated:

It cannot reasonably be argued that players without carer responsibilities were required to be responsible for “any alternative carer arrangements occasioned by the Tour and the costs thereof”. The requirement simply did not arise. The impugned requirements were imposed solely on players with carer responsibilities (of which the Soccer Star was the only one).

The comparator exercise simply didn’t work because the Requirement only applied to the soccer star herself and didn’t apply to the Comparator Group or anyone else playing for the Matildas.

The Tribunal was therefore required to dismiss the soccer star’s case. Garriock v Football Federation Australia [2016] NSWCATAD 63 (8 April 2016).

Lessons for Employers
Employers should be mindful of imposing certain requirements on employees where it  may be difficult for some employees to comply by reason of a protected attribute (e.g. carer’s responsibility, disability, pregnancy, age, religion etc.). Requirements may appear neutral on their face but may be discriminatory once the “comparator exercise” is applied.

For further information, please contact:

Brendan Taylor, Employment Lawyer |  Phone: +61 8 9325 1700  |  Email: btaylor@robertsonhayles.com