Equal Opportunity Act 1984 (WA)

Western Australia Equal Opportunity Act 1984 Western Australia Equal Opportunity Act 1984 Contents Part I — Preliminary 1. Short title 1 2. Commencement 1 3. Objects 1 4. Terms used 1 5. Act done for 2 or more reasons 1 6. Act binds Crown 1 7. Inter‑governmental arrangements 1 Part II — Discrimination on ground of sex, marital status, pregnancy or breast feeding Division 1 — General 8. Discrimination on the ground of sex 1 9. Discrimination on the ground of marital status 1 10. Discrimination on the ground of pregnancy 1 10A. Discrimination on the ground of breast feeding 1 Division 2 — Discrimination in work 11. Discrimination against applicants and employees 1 12. Discrimination against commission agents 1 13. Discrimination against contract workers 1 14. Partnerships 1 15. Professional or trade organisations 1 16. Qualifying bodies 1 17. Employment agencies 1 Division 3 — Discrimination in other areas 18. Education 1 19. Access to places and vehicles 1 20. Goods, services and facilities 1 21. Accommodation 1 21A. Land 1 22. Clubs 1 23. Requesting or requiring provision of certain information 1 Division 4 — Discrimination involving sexual harassment 24. Sexual harassment in employment 1 25. Sexual harassment in education 1 26. Sexual harassment related to accommodation 1 Division 5 — Exceptions to Part II 27. Genuine occupational qualifications 1 28. Pregnancy or childbirth 1 29. Employment of married couple or partners in de facto relationship 1 30. Services for members of one sex 1 31. Measures intended to achieve equality 1 32. Accommodation provided for employees or students 1 33. Residential care of children 1 34. Insurance 1 35. Sport 1 Part IIAA — Discrimination on gender history grounds in certain cases Division 1 — General 35AA. Gender history 1 35AB. Discrimination on gender history grounds 1 Division 2 — Discrimination in work 35AC. Discrimination against applicants and employees 1 35AD. Discrimination against commission agents 1 35AE. Discrimination against contract workers 1 35AF. Partnerships 1 35AG. Professional or trade organisations 1 35AH. Qualifying bodies 1 35AI. Employment agencies 1 Division 3 — Discrimination in other areas 35AJ. Education 1 35AK. Access to places and vehicles 1 35AL. Goods, services and facilities 1 35AM. Accommodation 1 35AN. Land 1 35AO. Clubs 1 35AP. Discrimination in sport on gender history grounds 1 35AQ. Requesting or requiring provision of certain information 1 35AR. Superannuation schemes and provident funds 1 Part IIA — Discrimination on the ground of family responsibility or family status Division 1 — General 35A. Discrimination on the ground of family responsibility or family status 1 Division 2 — Discrimination in work 35B. Discrimination against applicants and employees 1 35C. Discrimination against commission agents 1 35D. Discrimination against contract workers 1 35E. Partnerships 1 35F. Professional or trade organisations 1 35G. Qualifying bodies 1 35H. Employment agencies 1 Division 3 — Discrimination in other areas 35I. Education 1 35J. Requesting or requiring provision of certain information 1 Division 4 — Exceptions to Part IIA 35K. Measures intended to meet special needs 1 35L. Accommodation provided for employees 1 35M. Identity of relative 1 Part IIB — Discrimination on ground of sexual orientation Division 1 — General 35O. Discrimination on the ground of sexual orientation 1 Division 2 — Discrimination in work 35P. Discrimination against applicants and employees 1 35Q. Discrimination against commission agents 1 35R. Discrimination against contract workers 1 35S. Partnerships 1 35T. Professional or trade organisations 1 35U. Qualifying bodies 1 35V. Employment agencies 1 Division 3 — Discrimination in other areas 35W. Education 1 35X. Access to places and vehicles 1 35Y. Goods, services and facilities 1 35Z. Accommodation 1 35ZA. Land 1 35ZB. Clubs 1 35ZC. Requesting or requiring provision of certain information 1 Division 4 — Exceptions to Part IIB 35ZD. Measures intended to achieve equality 1 Part III — Discrimination on the ground of race Division 1 — General 36. Racial discrimination 1 Division 2 — Discrimination in work 37. Discrimination against applicants and employees 1 38. Discrimination against commission agents 1 39. Discrimination against contract workers 1 40. Partnerships 1 41. Professional or trade organisations 1 42. Qualifying bodies 1 43. Employment agencies 1 Division 3 — Discrimination in other areas 44. Education 1 45. Access to places and vehicles 1 46. Goods, services and facilities 1 47. Accommodation 1 47A. Land 1 48. Clubs 1 49. Requesting or requiring provision of certain information 1 Division 3A — Discrimination involving racial harassment 49A. Racial harassment in employment 1 49B. Racial harassment in education 1 49C. Racial harassment related to accommodation 1 49D. Racial grounds 1 Division 4 — Exceptions to Part III 50. Genuine occupational qualifications 1 51. Measures intended to achieve equality 1 52. Citizenship 1 Part IV — Discrimination on the ground of religious or political conviction Division 1 — General 53. Discrimination on ground of religious or political conviction 1 Division 2 — Discrimination in work 54. Discrimination against applicants and employees 1 55. Discrimination against commission agents 1 56. Discrimination against contract workers 1 57. Partnerships 1 58. Professional or trade organisations 1 59. Qualifying bodies 1 60. Employment agencies 1 Division 3 — Discrimination in other areas 61. Education 1 62. Goods, services and facilities 1 63. Accommodation 1 64. Clubs 1 65. Requesting or requiring provision of certain information 1 Division 4 — Exceptions to Part IV 66. Exceptions to s. 54 to 56 1 Part IVA — Discrimination on the ground of impairment Division 1 — General 66A. Discrimination on ground of impairment 1 Division 2 — Discrimination in work 66B. Discrimination against applicants and employees 1 66C. Discrimination against commission agents 1 66D. Discrimination against contract workers 1 66E. Partnerships 1 66F. Professional or trade organisations 1 66G. Qualifying bodies 1 66H. Employment agencies 1 Division 3 — Discrimination in other areas 66I. Education 1 66J. Access to places and vehicles 1 66K. Goods, services and facilities 1 66L. Accommodation 1 66M. Clubs and incorporated associations 1 66N. Discrimination in sport on ground of impairment 1 66O. Requesting or requiring provision of certain information 1 66P. Superannuation schemes and provident funds 1 Division 4 — Exceptions to Part IVA 66Q. Exceptions to certain work related provisions in Div. 2 1 66R. Measures intended to achieve equality 1 66S. Genuine occupational qualifications 1 66T. Insurance 1 66U. Regulations 1 Part IVB — Discrimination on the ground of age Division 1 — General 66V. Discrimination on ground of age 1 Division 2 — Discrimination in work 66W. Discrimination against applicants and employees 1 66X. Discrimination against commission agents 1 66Y. Discrimination against contract workers 1 66Z. Partnerships 1 66ZA. Professional or trade organisations 1 66ZB. Qualifying bodies 1 66ZC. Employment agencies 1 Division 3 — Discrimination in other areas 66ZD. Education 1 66ZE. Access to places and vehicles 1 66ZF. Goods, services and facilities 1 66ZG. Accommodation 1 66ZH. Land 1 66ZI. Clubs and incorporated associations 1 66ZJ. Discrimination in sport on ground of age 1 66ZK. Requesting or requiring provison of certain information 1 66ZL. Superannuation schemes and provident funds 1 Division 4 — Exceptions to Part IVB 66ZM. Health and safety considerations 1 66ZN. Retirement 1 66ZO. Contracts with minors 1 66ZP. Measures intended to achieve equality 1 66ZQ. Genuine occupational qualifications 1 66ZR. Insurance 1 66ZS. Acts done under statutory authority 1 Part IVC — Discrimination on ground of publication of relevant details of persons on Fines Enforcement Registrar's website Division 1 — General 67A. Discrimination on ground of publication of relevant details on Fines Enforcement Registrar's website 1 Division 2 — Discrimination in work 67B. Discrimination against applicants and employees 1 67C. Discrimination against commission agents 1 67D. Discrimination against contract workers 1 67E. Professional or trade organisations 1 67F. Qualifying bodies 1 67G. Employment agencies 1 Division 3 — Discrimination in other areas 67H. Goods, services and facilities 1 67I. Accommodation 1 Part V — Other unlawful acts 67. Victimisation 1 68. Advertisements 1 Part VI — General exceptions to this Act 69. Acts done under statutory authority 1 70. Charities 1 71. Voluntary bodies 1 72. Religious bodies 1 73. Educational institutions established for religious purposes 1 74. Establishments providing housing accommodation for aged persons 1 Part VII — The Commissioner for Equal Opportunity Division 1 — Office of Commissioner 75. Commissioner for Equal Opportunity 1 76. Vacation of office 1 77. Existing rights etc. 1 78. Acting Commissioner 1 79. Staff 1 Division 2 — Functions of the Commissioner 80. General functions of Commissioner 1 81. Reference by the Minister to the Commissioner 1 82. Review of legislation, policies and practices 1 83. Making complaints to Commissioner 1 83A. Withdrawal and lapse of complaints 1 83B. Restrictions on multiple actions relating to sexual harassment in connection with work 1 84. Investigation of complaints by Commissioner 1 85. Application to Tribunal for interim order under s. 126 1 86. Power to obtain information and documents 1 87. Directions to attend compulsory conference 1 88. Compulsory conference 1 89. Commissioner may dismiss certain complaints 1 90. Commissioner to refer complaint to Tribunal if complainant so requires 1 91. Resolving complaints by conciliation 1 92. Representation in conciliation proceedings 1 93. Referring complaints to Tribunal 1 93A. Commissioner may assist complainants on appeal to Supreme Court 1 94. Delegation by Commissioner 1 95. Annual report 1 Part VIII — The Role of the State Administrative Tribunal Division 1 — Constituting the Tribunal 96. Presiding member 1 Division 2 — Functions 107. Jurisdiction of Tribunal 1 108. Commissioner's reference under s. 93(1) 1 113. Officer of Commissioner assisting Tribunal 1 114. Determining representative complaints 1 115. Matter to be considered in determining representative complaints 1 116. Amendment of complaint by Tribunal 1 117. Ordinary complaint not precluded by representative complaint 1 122. Tribunal may prohibit publication of evidence 1 123. Proof of exceptions 1 126. Interim orders 1 127. Decisions of Tribunal 1 134. Appeals 1 Division 3 — Power of Tribunal to grant exemptions 135. Tribunal may grant exemptions 1 136. Tribunal must publish decisions made under s. 135 1 137. Effect of exemption orders 1 Part IX — Equal opportunity in public employment Division 1 — General 138. Terms used 1 139. Application of Part IX 1 140. Objects of Part IX 1 141. Exercise of functions of authorities 1 Division 2 — The Director of Equal Opportunity in Public Employment 142. The Director 1 143. Functions of Director 1 144. Annual report of Director 1 Division 3 — Equal employment opportunity management plans 145. Preparation and implementation of management plans 1 146. Annual report to Director 1 147. Investigation by Director 1 149. Representation in investigation proceedings 1 150. Powers of Director on an investigation 1 151. Incriminatory statements 1 152. Conclusion of investigation 1 153. Direction to amend management plan 1 Part X — Miscellaneous 154. Effect of contravention of Act 1 155. Obstruction 1 156. Failure to provide actuarial or statistical data 1 157. Failure to attend conciliation proceedings or conference 1 158. Failure to furnish information or produce document 1 159. False or misleading information 1 160. Liability of persons involved in unlawful acts 1 161. Vicarious liability 1 162. Acts done on behalf of bodies 1 163. References to employer 1 164. Self‑incrimination 1 165. Particulars of certain complaints not to be communicated 1 166. Protection from civil actions 1 167. Non‑disclosure of private information 1 168. Information stored otherwise than in written form 1 169. Regulations 1 Notes Compilation table 1 Uncommenced provisions table 1 Other notes 1 Defined terms Western Australia Equal Opportunity Act 1984 An Act to promote equality of opportunity in Western Australia and to provide remedies in respect of discrimination on the grounds of sex, marital status, pregnancy, sexual orientation, family responsibility or family status, race, religious or political conviction, impairment, age, or publication of details on the Fines Enforcement Registrar's website, or involving sexual or racial harassment or, in certain cases, on gender history grounds. [Long title amended: No. 40 of 1988 s. 4; No. 74 of 1992 s. 4; No. 2 of 2000 s. 28; No. 3 of 2002 s. 46; No. 48 of 2012 s. 45.] Part I — Preliminary 1. Short title This Act may be cited as the Equal Opportunity Act 1984. 2. Commencement The provisions of this Act shall come into operation on such day or days as is or are respectively fixed by proclamation. 3. Objects The objects of this Act are — (a) to eliminate, so far as is possible, discrimination against persons on the ground of sex, marital status or pregnancy, family responsibility or family status, sexual orientation, race, religious or political conviction, impairment, age, publication of relevant details on the Fines Enforcement Registrar's website or, in certain cases, gender history in the areas of work, accommodation, education, the provision of goods, facilities and services and the activities of clubs; and (b) to eliminate, so far as is possible, sexual harassment and racial harassment in the workplace and in educational institutions and sexual harassment and racial harassment related to accommodation; and (c) to promote recognition and acceptance within the community of the equality of men and women; and (d) to promote recognition and acceptance within the community of the equality of persons of all races and of all persons regardless of their sexual orientation, religious or political convictions or their impairments or ages. [Section 3 amended: No. 40 of 1988 s. 5; No. 74 of 1992 s. 5; No. 2 of 2000 s. 28; No. 3 of 2002 s. 47; No. 48 of 2012 s. 46.] 4. Terms used (1) In this Act, unless the contrary intention appears — accommodation includes residential and business accommodation; age, in relation to a person, means chronological age of the person; charitable benefits means benefits for purposes that are exclusively charitable according to the law in force in Western Australia; club means an association (whether incorporated or unincorporated) of not less than 30 persons associated together for social, literary, cultural, political, sporting, athletic or other lawful purposes that — (a) provides and maintains its facilities, in whole or in part, from the funds of the association; and (b) sells or supplies liquor for consumption on its premises; commission agent means a person who does work for another person as the agent of that person and who is remunerated, whether in whole or in part, by commission; Commissioner means the Commissioner for Equal Opportunity appointed under section 75; committee of management in relation to a club, organisation or incorporated association, means the group or body of persons (however described) that manages the affairs of that club, organisation or incorporated association, as the case may be; complainant in relation to a complaint, means the person or each of the persons by whom that complaint is lodged; complaint means — (a) a complaint, whether or not a representative complaint, lodged under section 83; and (b) a matter referred to the Tribunal for inquiry as a complaint pursuant to section 107; contract worker means a person who does work for another person pursuant to a contract between the employer of the first‑mentioned person and that other person; Director means the Director of Equal Opportunity in Public Employment appointed under section 142; document includes any book, register or other record of information, however compiled, recorded or stored; educational authority means a body or person administering an educational institution; educational institution means a school, college, university or other institution at which education or training is provided; employment includes — (a) part‑time and temporary employment; and (b) work under a contract for services; and (c) work as a State employee; employment agency means any person who or body that, whether for payment or not, assists persons to find employment or other work or assists employers to find employees or workers; family responsibility or family status, in relation to a person, means — (a) having responsibility for the care of another person, whether or not that person is a dependant, other than in the course of paid employment; or (b) the status of being a particular relative; or (c) the status of being a relative of a particular person; Fines Enforcement Registrar means the Registrar appointed under the Fines, Penalties and Infringement Notices Enforcement Act 1994 section 7(1); functions includes powers, authorities and duties; gender reassigned person means a person who has been issued with a recognition certificate under the Gender Reassignment Act 2000 or a certificate which is an equivalent certificate for the purposes of that Act; impairment in relation to a person, means one or more of the following conditions — (a) any defect or disturbance in the normal structure or functioning of a person's body; or (b) any defect or disturbance in the normal structure or functioning of a person's brain; or (c) any illness or condition which impairs a person's thought processes, perception of reality, emotions or judgment or which results in disturbed behaviour, whether arising from a condition subsisting at birth or from an illness or injury and includes an impairment — (d) which presently exists or existed in the past but has now ceased to exist; or (e) which is imputed to the person; incorporated association means an association that is incorporated or deemed to be incorporated under the Associations Incorporation Act 2015; inquiry in relation to the Tribunal, means an inquiry referred to in section 107; institution of tertiary education means a university, college of advanced education or other institution at which tertiary education or training is provided, but does not include a technical and further education institution within the meaning assigned to that term in the Employment, Education and Training Act 1988 of the Commonwealth; man means a member of the male sex irrespective of age; marital status means the status or condition of being — (a) single; or (b) married; or (c) married but living separately and apart from one's spouse; or (d) divorced; or (e) widowed; or (f) the de facto partner of another person; near relative in relation to a person, means — (a) a parent, child, grandparent, grandchild, brother or sister of the person; or (b) the spouse or de facto partner of the first‑mentioned person or of a person referred to in paragraph (a); principal means — (a) in relation to a commission agent — a person for whom the commission agent does work as a commission agent; and (b) in relation to a contract worker — a person for whom the contract worker does work pursuant to a contract between the employer of the contract worker and that other person; private educational authority means a person or body administering an educational institution, not being a school, college, university or other institution established under the School Education Act 1999, the Vocational Education and Training Act 1996, or an Act of incorporation of a university or institute of technology; race includes colour, descent, ethnic or national origin or nationality and the fact that a race may comprise 2 or more distinct races does not prevent it being a race for the purposes of this Act; relative, in relation to a person, means a person who is related to the first‑mentioned person by blood, marriage, affinity or adoption and includes a person who is wholly or mainly dependent on, or is a member of the household of, the first‑mentioned person; relevant details, in relation to a person, has the meaning given in the Fines, Penalties and Infringement Notices Enforcement Act 1994 section 56C; representative complaint means a complaint lodged under section 83 by a person on behalf of the person and other persons or by 2 or more persons on behalf of themselves and other persons, and which is treated by the Tribunal as a representative complaint; respondent in relation to a complaint, means the person who is, or each of the persons who are, alleged to have done the act to which the complaint relates; services includes — (a) services relating to banking, insurance, superannuation and the provision of grants, loans, credit or finance; and (b) services relating to entertainment, recreation or refreshment; and (c) services relating to transport or travel; and (d) services of the kind provided by members of any profession or trade; and (e) services of the kind provided by a government (other than the assessment of an application for suitability for adoptive parenthood, or the placement of a child for adoption or with a view to the child's adoption, under the Adoption Act 1994), a government or public authority or a local government body; sexual orientation, in relation to a person, means heterosexuality, homosexuality, lesbianism or bisexuality and includes heterosexuality, homosexuality, lesbianism or bisexuality imputed to the person; State employee includes a member of the Police Force of Western Australia; Tribunal means the State Administrative Tribunal under the State Administrative Tribunal Act 2004; vehicle includes a ship and an aircraft; voluntary body means an association or other body (whether incorporated or unincorporated) the activities of which are not engaged in for the purpose of making a profit, but does not include — (a) a club; or (b) a body established by a law of the Commonwealth, or of a State or Territory of the Commonwealth; or (c) an association that provides grants, loans, credit or finance to its members; Western Australian law means — (a) an Act; or (b) a regulation, rule, local law or by‑law made under or pursuant to an Act; or (c) an order or award made under or pursuant to — (i) an Act; (ii) a regulation, rule, local law or by‑law referred to in paragraph (b); woman means a member of the female sex irrespective of age. (2) For the purposes of this Act, refusing or failing to do an act shall be deemed to be the doing of an act and a reference to an act includes a reference to a refusal or failure to do an act. (3) For the purposes of this Act, religious or political conviction shall be construed so as to include a lack or absence of religious or political conviction. (4) In determining what constitutes "unjustifiable hardship" for the purposes of Part IVA, all relevant circumstances of the particular case shall be taken into account including the nature of the benefit or detriment likely to accrue or be suffered by all persons concerned, the nature of the impairment of the person concerned and the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship. [Section 4 amended: No. 40 of 1988 s. 6; No. 74 of 1992 s. 6; No. 14 of 1996 s. 4; No. 42 of 1996 s. 71(1); No. 36 of 1999 s. 247; No. 2 of 2000 s. 28; No. 3 of 2002 s. 48; No. 65 of 2003 s. 33; No. 55 of 2004 s. 303; No. 21 of 2008 s. 661; No. 48 of 2012 s. 47; No. 30 of 2015 s. 232.] 5. Act done for 2 or more reasons A reference in Part II, IIAA, IIA, IIB, III, IV, IVA, IVB or IVC to the doing of an act on the ground of a particular matter includes a reference to the doing of an act on the ground of 2 or more matters that include the particular matter, whether or not the particular matter is the dominant or substantial reason for the doing of the act. [Section 5 amended: No. 40 of 1988 s. 7; No. 74 of 1992 s. 7 and 40; No. 2 of 2000 s. 28; No. 3 of 2002 s. 49; No. 48 of 2012 s. 48.] 6. Act binds Crown This Act binds the Crown. 7. Inter‑governmental arrangements (1) The Minister may make an arrangement with a Minister of the Commonwealth for or in relation to — (a) the performance on a joint basis of functions relating to the promotion of the objects of this Act; or (b) the performance by this State or by an authority of this State on behalf of the Commonwealth of functions, including functions of the Human Rights Commission established by the Human Rights Commission Act 1981 2 of the Commonwealth, relating to the promotion of the objects of this Act. (2) An arrangement under this section may contain such incidental or supplementary provisions as the Minister and the Minister of the Commonwealth think necessary. (3) The Minister may arrange with the Minister of the Commonwealth for the variation or revocation of the arrangement. (4) An arrangement under this section, or the variation or revocation of such an arrangement, shall be in writing and a copy of each instrument by which an arrangement under this section has been made, varied or revoked shall be published in the Gazette. Part II — Discrimination on ground of sex, marital status, pregnancy or breast feeding [Heading amended: No. 2 of 2010 s. 4.] Division 1 — General 8. Discrimination on the ground of sex (1) For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of the sex of the aggrieved person if, on the ground of — (a) the sex of the aggrieved person; or (b) a characteristic that appertains generally to persons of the sex of the aggrieved person; or (c) a characteristic that is generally imputed to persons of the sex of the aggrieved person, the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of the opposite sex. (2) For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of the sex of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition — (a) with which a substantially higher proportion of persons of the opposite sex to the aggrieved person comply or are able to comply; and (b) which is not reasonable having regard to the circumstances of the case; and (c) with which the aggrieved person does not or is not able to comply. [Section 8 amended: No. 74 of 1992 s. 40.] 9. Discrimination on the ground of marital status (1) For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of the marital status of the aggrieved person if, on the ground of — (a) the marital status of the aggrieved person; or (b) a characteristic that appertains generally to persons of the marital status of the aggrieved person; or (c) a characteristic that is generally imputed to persons of the marital status of the aggrieved person, the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of a different marital status. (2) For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of the marital status of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition — (a) with which a substantially higher proportion of persons not of the same marital status as the aggrieved person comply or are able to comply; and (b) which is not reasonable having regard to the circumstances of the case; and (c) with which the aggrieved person does not or is not able to comply. [Section 9 amended: No. 74 of 1992 s. 40.] 10. Discrimination on the ground of pregnancy (1) For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of the pregnancy of the aggrieved person if — (a) on the ground of — (i) the pregnancy of the aggrieved person; or (ii) a characteristic that appertains generally to persons who are pregnant; or (iii) a characteristic that is generally imputed to persons who are pregnant, the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person who was not pregnant; and (b) the less favourable treatment is not reasonable in the circumstances. (2) For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of the pregnancy of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition — (a) with which a substantially higher proportion of persons who are not pregnant comply or are able to comply; and (b) which is not reasonable having regard to the circumstances of the case; and (c) with which the aggrieved person does not or is not able to comply. [Section 10 amended: No. 74 of 1992 s. 40.] 10A. Discrimination on the ground of breast feeding (1) For the purposes of this Act a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of breast feeding if on the ground of — (a) the aggrieved person breast feeding or bottle feeding an infant or proposing to do so; or (b) a characteristic that appertains generally to persons who are breast feeding or bottle feeding; or (c) a characteristic that is generally imputed to persons who are breast feeding or bottle feeding, the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or not materially different, the discriminator treats or would treat a person who was not breast feeding or bottle feeding. (2) For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of breast feeding or bottle feeding if the discriminator requires the aggrieved person to comply with a requirement or condition — (a) with which a substantially higher proportion of persons who are not breast feeding or bottle feeding comply or are able to comply; and (b) which is not reasonable having regard to the circumstances of the case; and (c) with which the aggrieved person does not or is not able to comply. [Section 10A inserted: No. 2 of 2010 s. 5.] Division 2 — Discrimination in work 11. Discrimination against applicants and employees (1) It is unlawful for an employer to discriminate against a person on the ground of the person's sex, marital status, pregnancy or breast feeding — (a) in the arrangements made for the purpose of determining who should be offered employment; or (b) in determining who should be offered employment; or (c) in the terms or conditions on which employment is offered. (2) It is unlawful for an employer to discriminate against an employee on the ground of the employee's sex, marital status, pregnancy or breast feeding — (a) in the terms or conditions of employment that the employer affords the employee; or (b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or (c) by dismissing the employee; or (d) by subjecting the employee to any other detriment. (3) Nothing in subsection (1)(a) and (b) renders it unlawful for a person to discriminate against another person, on the ground of the other person's sex, in connection with employment to perform domestic duties on the premises on which the first‑mentioned person resides. [Section 11 amended: No. 2 of 2010 s. 6.] 12. Discrimination against commission agents (1) It