What is in these guidelines
These guidelines have been produced by the Anti-Discrimination Board of NSW and the Australian Hotels Association (NSW) (AHA (NSW)). They explain the rights and responsibilities of hoteliers and their employees under anti-discrimination law. If you have any questions about these guidelines please contact AHA (NSW) or the Anti-Discrimination Board.

The Hoteliers Guidelines are available as a PDF or a text document. To download a PDF document you need Adobe Acrobat. You can download the software for free from the Adobe website - Adobe Acrobat.

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How to download and use the Hoteliers Guidelines

1. To view the Hoteliers Guidelines presentation it is best to download all the following files to your computer and save them within the same folder. This will ensure that all cross document links work.
2. The main presentation links to sample Equal Employment Opportunity (EEO) and harassment policies which are intended to be amended to suit the needs of individual hotels. You can access these documents by clicking on the links in the main presentation or by opening them from this web page.
3. There are also discrimination complaint forms on the CD. You can access these from the main presentation by going to the ‘How to handle a complaint’ section or by opening the files direct from this web page.

• PDF - Introduction (64.36 KB)
• PDF - Hoteliers Guidelines (1168 KB)
• PDF - Anti-Discrimination Board complaint form (65.65 KB)
• PDF - Sample Hotel complaint form (32.06 KB)
• RTF - Sample EEO policy (110.92 KB)
• RTF - Sample Harassment policy (11.46 KB)
• TXT - Instructions (10.43 KB)

• Role of the NSW Anti-Discrimination Board
• Anti-Discrimination law

• Direct discrimination
• Indirect discrimination

• Sexual harassment
• Harassment

• Reasonable steps

• Check the services your hotel provides
• Refusing entry, service or barring people
• How long a hotel can bar people
• Dress rules
• Charges and special or free deals
• Dealing with sexual harassment
• Dealing with racial, homosexual, HIV/AIDS or transgender vilification
• Providing access and services for people with disabilities
• Rooms and accommodation
• Check your hotel’s employment practices
• Hiring staff
• Leave and employment opportunities
• Dress codes while working
• Ending employment

• What to do if there is a complaint against your hotel

Introduction
These guidelines have been produced by the Australian Hotels Association (NSW) and the Anti-Discrimination Board of NSW. Both organisations share a strong commitment to helping hoteliers and their employees understand their responsibilities under anti-discrimination law. The aim is to minimise discrimination and harassment, and lower the number of complaints of discrimination lodged against hotels.

Discrimination and harassment are issues no hotelier can afford to ignore. The consequences of discrimination against staff or customers can be low productivity and morale, high staff turnover, poor customer service, loss of reputation and costly legal actions.

Hotels that are striving to eliminate discrimination and harassment provide better customer service and a better workplace for their staff. Following the information in these guidelines makes good business sense.

Please take some time to view the guidelines on this CD. If you wish to discuss any of the issues dealt with in these guidelines, please don’t hesitate to contact either the AHA (NSW) or the Anti-Discrimination Board of NSW. Our addresses and phone numbers are at the back of the guidelines.

John Thorpe
President
Australian Hotels Association (NSW)

Stepan Kerkyasharian AM
President
Guidelines for Hoteliers Anti-Discrimination Board of NSW

• provides an enquiry service for people about their rights and responsibilities under anti-discrimination law;
• investigates and conciliates discrimination complaints;
• tries to prevent discrimination happening — by running education programs, seminars, talks, and producing publications and a website;
• advises the Government on discrimination matters and makes recommendations about the law.

• sex;
• pregnancy;
• race, including colour, nationality, descent and ethnic, ethno-religious or national origin;
• marital status - whether they’re single, married, de facto, divorced or separated;
• disability - physical, intellectual or psychiatric; past, current or future; actual or presumed;
• homosexuality - actual or presumed;
• age, including compulsory retirement (however, it is not against the law to exclude people aged under 18 from restricted areas of hotels, or to exclude a person under the age of 18 years who is found in an authorised area not in the immediate company of a responsible adult);
• transgender (transsexuality) (actual or presumed);
• carers’ responsibilities (in employment only);
• discrimination because a relative or associate has one of these characteristics (except carers’ responsibilities).

• religion;
• political opinion;
• medical record;
• sexual preference and
• social origin.

• the goods and services the hotel provides, including accommodation (carers’ responsibilities discrimination is not unlawful in this area); and
• the hotel’s employment practices.

Example of direct discrimination
A bar attendant refuses to serve someone because they are Aboriginal. This would be direct race discrimination.

Example of indirect discrimination
A hotel insists that customers can only use a driver’s licence as proof of age even though the Liquor Act allows for other forms of identification to be used, such as a passport or proof of age document. This:
• is a requirement that is the same for everybody;
• means that people with certain types of disabilities who are unable to drive will be unable to show a driver’s licence as an ID;
• is probably not reasonable with regards to the circumstances, as there are other forms of identification that could serve the same purpose as a driver’s licence.
Therefore, the requirement that only a driver’s licence can be used as proof of age may be indirect disability discrimination.

Sexual harassment
Sexual harassment is also against the law.

Sexual harassment is any form of sexually-related behaviour that:

• someone does not want; and
• in the circumstances, a reasonable person would have expected the person to be offended, humiliated or intimidated.
  Examples of sexual harassment include:
  • intrusive questions about sexual activity, or offensive jokes with sexual content;
  • staring or leering in a sexual manner, sexual or physical contact, such as slapping, kissing, touching or hugging;
  • repeated sexual or personal invitations after the person has refused similar invitations before;
  • sexual assault (also a crime under the Crimes Act).

• someone does not want and does not return;
• offends, humiliates or intimidates them; and
• targets them because of their sex, pregnancy, race, or ethnic group, age, disability, homosexuality, transgender or carers’ responsibilities (employment only).
  
  Examples of harassment include:
  • material that is racist, sexist, homophobic (anti-gay) and so on, that is displayed in the workplace, circulated on paper or by email, or put on a computer or fax machine or on the internet, or in someone’s personal belongings;
  • verbal abuse or comments that put down or stereotype people because of their sex, pregnancy, race, age, marital status, homosexuality and so on.

Complaints handled by the Anti- Discrimination Board
• A woman worked as a casual kitchen hand in a restaurant, and formed a social relationship with the chef outside the workplace. She said she wanted their relationship to remain platonic, but the chef continually asked her to have a sexual relationship with him. After she rejected his advances she was not offered any further work. The complaint of sexual harassment was lodged against the employer and the cook. It was resolved with the help of the Board and included a payment of $3,000.
• A woman worked as a bar attendant at a club. She alleged that during her employment a number of club patrons continually made a number of unwelcome comments to her about the size of her breasts. She further alleged that when she complained to a director about the conduct, he also proceeded to make similar comments. The complaint was settled following a conciliation conference when the club agreed to provide the woman with a statement of regret; undertake to train all staff and to review its policies on discrimination and harassment. The woman was compensated with a payment of $5,000 for the humiliation suffered.
• A man alleged that he was subjected to ongoing harassment from his immediate supervisor who repeatedly humiliated him because of his stutter. The man lodged a complaint of disability discrimination with the Board. The complaint was resolved at a conciliation conference at the Board with the employer agreeing to pay the man $13,000 for pain and suffering, provide him with a statement of employment, an apology, and an undertaking to train all staff.

• complained about discrimination to you or an organisation like the Anti-Discrimination Board;
• supported someone with a discrimination complaint; or
• acted as a witness to a discrimination complaint.

Complaint handled by the Anti-Discrimination Board
A man complained to his boss that he had been discriminated against because of his race. The next day he was dismissed. The man alleged racial discrimination and the dismissal amounted to victimisation under the NSW Anti-Discrimination Act. During a conciliation conference at the Board, the employer agreed that they had done the wrong thing by dismissing the man and not taking his complaint of race discrimination seriously. The man was reinstated and received $4,000 for the racial discrimination.

Examples of possible racial, homosexual, HIV/AIDS or transgender vilification are:

• graffiti scrawled on hotel walls that vilifies people because of their race, homosexuality, HIV/AIDS or transgender status;
• posters, cartoons or notices on hotel noticeboards that vilify people because of their race, homosexuality, HIV/AIDS or transgender status;
• abuse that happens publicly between people in the hotel that vilifies people because of their race, homosexuality, HIV/AIDS or transgender status.

Complaint handled by the Anti-Discrimination Board
A Jewish woman asked a public authority to remove anti-Semitic graffiti from a public place they were responsible for. They did not respond. She came to the Board and after a conciliation conference, the authority removed the graffiti.

• implementing Equal Employment Opportunity (EEO) policies, harassment policies and grievance procedures;
• training staff to ensure that they are aware of their rights and responsibilities in relation to anti-discrimination legislation; and
• making clear what is not acceptable behaviour in the workplace.

A hotelier may be able to transfer legal liability to a manager if they are able to show that the manager did not implement the organisation’s anti-discrimination, harassment and EEO policies properly or neglected to take steps that should have been taken. For example, if someone authorised to hire staff discriminates unlawfully, the hotelier would be liable for this person’s action, unless the hirer acted against the hotelier’s specific instructions not to discriminate. The hotelier is also generally legally liable when any other employee behaves in a discriminatory or harassing way.

In some instances individual harassers have been found jointly legally liable with the employer. This is particularly the case for sexual harassment, where the Anti-Discrimination Act allows employees to lodge a complaint against an individual harasser.

Case before NSW Administrative Decisions Tribunal NSW
Although not referring specifically to a hotel, the following case illustrates that even when an organisation is trying to resolve a complaint fairly, it may be found to have not taken all reasonable steps to prevent the problem.

Dee v Commissioner of Police, NSW Police and Anor (No 2) [2004] NSWADT168 (16 August 2004), – NSW Police Service found vicariously liable for sexual harassment

When a female employee with the NSW Police Service made a complaint of sexual harassment, her supervisor told the alleged harasser about the allegation, but did not tell him that his behaviour was inappropriate. The supervisor reported the complaint to an inspector who then circulated a memo saying that sexual harassment would not be tolerated.

The conduct resumed, and the inspector spoke to the man again. However, when the man still didn’t stop his behaviour, the woman made another complaint and the matter was referred to a detective, who found that there wasn’t enough evidence to substantiate a complaint. The woman was told that her complaint had been investigated and the alleged harasser had been required to sign an agreement about his behaviour.

The Administrative Decisions Tribunal said the Police Service had taken the woman’s complaints seriously and acted quickly on them. However, it found that the Service had not taken all reasonable steps to prevent sexual harassment, because:

• the memo sent by the inspector did not explain what constituted sexual harassment;
• staff had not been trained in issues of sexual harassment in the workplace; and
• the man who had harassed the employee thought his behaviour was normal and part of the workplace culture.
The employee was awarded $20,000 in damages, plus some of her costs.

Also be aware of unspoken rules about where customers are allowed based on their race. For example Aboriginal customers shouldn’t be expected to sit in one area of the hotel, while non-Aboriginals sit in another.

Complaint handled by the Anti-Discrimination Board
A man went to a hotel to buy some cigarettes. The attendant refused to serve him, calling him a ‘faggot’. The man complained to the Board, who then wrote to the licensee of the hotel. The man agreed to meet with the licensee and the licensee agreed to implement a policy so that all refusals of service would be referred to him first. The licensee also apologised to the man.

A hotel can also bar someone for some time after a particular incident. However, this can only happen if the person:

• is intoxicated, violent, quarrelsome or disorderly;
• is using the hotel for the purposes of prostitution;
• is doing anything that makes the licensee liable for a penalty;
• is hawking, selling or peddling goods on the premises;
• has a prohibited drug in their possession.

• the standard for refusing service to people who are intoxicated should be the same for everyone and not be based on someone’s racial group, sex and so on;
• be aware that people with certain types of disabilities, which may affect the way they walk or talk, may appear to be intoxicated when they are not;
• if people who have caused trouble in the past happen to belong to a particular racial, age or any other group, don’t assume that others from that group will also cause trouble. A hotel should only warn or bar customers if they actually do cause trouble.

Examples of discrimination
• If a hotel has had problems with male customers from a particular racial group in the past and refuses entry to male customers of that racial group in the future, this could be sex and race discrimination.
• A person with an intellectual or other type of disability may be upset if they have been refused entry because of the hotel’s belief that they might get drunk or offend other customers.

If a hotel has to bar people from its premises frequently, it might be worthwhile displaying the hotel’s barring rules, explaining what people can expect for different types of offences.

When a new licensee takes over a hotel, they should review the previous licensee’s barrings, checking that they were applied fairly before going along with them or establishing a new barring system.

Case before the Anti-Discrimination Tribunal, QLD - Molesworth v Campbell and Patcono Pty Ltd QADT 30 (2004)
An Aboriginal man went to a hotel to talk to the hotel manager about constructing a bridge in the town to make the area more accessible for tourists. The two men began arguing. At one point, the manager drew a knife on the man, telling him to leave the hotel and barring him in future. In addition, the manager had also called the Aboriginal man ‘Abo’ on the occasions he’d gone to the pub as a customer over a two-year period. The Tribunal ordered that the man be awarded the sum of $31,500 with interest, and $450 in costs.

• While a hotel doesn’t have to have exactly the same dress rules for men and women, the standard of formality or informality should be roughly the same for both sexes. For example, if men wearing work singlets are refused entry to the hotel, women wearing equivalent work clothes should also be refused entry.
• If a hotel has a rule that says no-one must enter with bare feet or thongs, this rule should be applied to everyone, not just members of a particular group, such as Aboriginal people or Torres Strait Islanders. In addition, some customers may have a disability that makes it difficult for them to wear shoes.
• In some instances it may not be appropriate to have a global ban headgear. For example, a hotel may need to take people’s ethno-religious beliefs into account, such as allowing Sikhs to wear a turban and Muslim women to wear a headscarf, or they could be at risk of indirect race discrimination.

Example of discrimination
Refusing entry to someone, who has to wear a hat or scarf due to a medical condition could be disability discrimination.

Example of discrimination
If an entry fee is charged male customers, but not female customers, this could be sex discrimination.

Case before the Anti-Discrimination Tribunal, QLD - Fisher v Byrnes QADT 33 (2006)
The QLD Anti-Discrimination Tribunal found that a hotel proprietor sexually harassed a female employee for the five months she was employed at the Railway Hotel in Gympie in 2002. The harassment included inappropriate comments the proprietor made to the employee both privately and in front of customers, and touching her inappropriately in circumstances where it might have appeared accidental or innocent.
The hotel proprietor was ordered by the Tribunal to pay the woman $12,675 in damages and costs, and to publish an apology in the Gympie Times to acknowledge the ‘hurt, humiliation and embarrassment’ he caused by his conduct.

Example of discrimination
If racially vilifying comments are made in a hotel car park between customers, this could be racial vilification, depending on the severity of the comments.

Example of discrimination
Under the Anti-Discrimination Act and the Companion Animals Act 1998, guide dogs accompanying someone with a vision impairment and hearing dogs accompanying someone with a hearing impairment are allowed into the hotel and its facilities, including places where food is served. These dogs are very well trained and are unlikely to cause any problems.

While hotels should do their best to make sure that their accommodation is accessible to people with different types of disabilities, a hotel can refuse to let a room to a person with a disability if letting the room would pose a real health or safety risk to the person or other people, or if the hotel has no suitable rooms available. If a hotel has rooms designed to accommodate guest with disabilities it is advisable that these are kept free until all other rooms in the hotel are booked, so they are more likely to be available if a disabled person arrives.

A hotel can also refuse accommodation if it is reasonably clear that the customer won’t be able to pay for it. However, a hotel can’t assume that someone won’t be able to pay because they happen to be a certain race, sex, age, and so on, as this would be unlawful discrimination. There should be reasonable grounds for the decision, unrelated to the person’s race, sex, sexual preference, etc.

The following situations could also be against the law:

• refusing accommodation to a person because they are accompanied by a guide or hearing dog could be disability discrimination;
• not letting a double room to a couple because they aren’t married could be marital status discrimination;
• not letting a double room to two men or two women because you think they might be, or they are, homosexual could be homosexual discrimination;
• refusing to let a room to people who you think might have AIDS could be either homosexual or disability discrimination, depending on the circumstances. Information about AIDS can be obtained from a Public Health Unit at the NSW Health Department;
• refusing to let a room to people with children could be age discrimination, unless the rooms are too small for that number of people.

Example of discrimination
If two women are refused accommodation because the hotelier thinks they are lesbians, this could be homosexual discrimination.

In general, you or your staff must not discriminate against, or harass other employees, potential employees or contractors because of their sex, pregnancy, race or ethnic group, marital status, disability, homosexuality, transgender status or carers’ responsibilities.

To make sure that you don’t discriminate, it is best to have a clear written policy on all of the following issues.

In hiring staff a hotelier would be entitled to discriminate against an applicant who is under 18 years of age and who therefore would not be able to enter the restricted areas and should only be in the authorised areas when in the company of a responsible adult. Such an employee would not be able to carry out any duties relating to the sale of liquor or gaming.

Examples of discrimination
If a hotelier decides to only hire male staff at night for security reasons, this could be sex discrimination.

If a hotelier decides not to hire older employees because they think that they won’t be able to relate to younger customers, this could be age discrimination.

Examples of discrimination
Employees should be allowed to take time off for medical appointments if this is reasonable. If refused this could be disability discrimination.

A hotelier should allow staff who have children to be promoted into supervisory or managerial positions. If not, this could be age or carers’ responsibilities discrimination.

• employers may require men and women to have their hair a certain length or for it to be tied back for legitimate occupational health and safety reasons;
• employers may require professional as opposed to casual dress where reasonable in relation to the nature of the work performed;
• employers may require, in addition to an acceptable black and white combination, a special uniform supplied by the employer as required under the relevant award;
• employers may require staff to only wear jewellery of a particular type, such as sleepers, or cover tattoos or body piercings.

Examples of discrimination
If female employees are allowed to wear earrings, then male employees should be allowed to wear earrings.

In general, Muslim employees should be allowed to wear a headscarf. If not, this could be indirect race discrimination. However, it won’t be against the law to ask for someone to wear a headscarf in a particular colour to match a uniform.

Example of discrimination
If a hotelier disciplines male employees more harshly than female employees, this could be sex discrimination.

• Someone within the hotel should be delegated to investigate internal complaints, such as a supervisor, manager or the hotelier.
• Depending on the seriousness of the complaint, the complaint could be verbal or in writing.
• Complaints should be handled quickly, within specific time frames, sensitively, impartially, fairly, confidentially and free of unfair repercussions or victimisation.
• The person investigating the complaint should get the other side of the story, either verbally or in writing.
• The investigator then needs to weigh up both sides of the story and make a decision based on what is most likely to have happened. If someone is found to have discriminated against or harassed another person, they should be disciplined in accordance with AHA (NSW) guidelines.

• Hotelier's complaint form

An agreed settlement will depend on the circumstances of the case. The outcome could be:

• that the person is no longer barred from the hotel;
• that the person gets the job they applied for;
• that the hotel runs an education program to make sure that people aren’t discriminated against in future;
• that the hotelier pays some financial compensation to the person who complained.

• Anti-Discrimination Board complaint form