Farmer v Jim Markakis Pty Ltd
[2003] NSWADT 252
•11/25/2003
CITATION: Farmer v Jim Markakis Pty Ltd [2003] NSWADT 252 revised - 1/12/2003 DIVISION: Equal Opportunity Division PARTIES: APPLICANT
Sarah Farmer
RESPONDENT
Jim Markakis Pty Ltd t/a Richardson and Wrench Newtown [2003] NSWADTFILE NUMBER: 031030 HEARING DATES: 3-4/06/03 SUBMISSIONS CLOSED: 06/17/2003 DATE OF DECISION:
11/25/2003BEFORE: Britton A - Judicial Member; Quayle C - Member; Weule B - Member APPLICATION: Transgender - Accommodation - Transgender - Goods and Services MATTER FOR DECISION: Principal matter LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Interpretation Act 1987CASES CITED: Commissioner of Corrective Services v Aldridge [2000] NSWADTAP
Dutt v Central Coast Area Health Service [2002] NSWADT 133
Martin v McKensey (No. 2) [2003] NSWADT 126 Commonwealth Bank v HREOC (1997) 80 FCR 78
Waters & Ors v Public Transport Corporation (1991) 173 CLR 349
Styles v Department of Foreign Affairs and Trade (1988) ALR 408
Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251
The State of New South Wales v Amery & Ors (EOD) [2003] NSWADTAP 16REPRESENTATION: APPLICANT
In person
RESPONDENT
A Lepouris, solicitorORDERS: 1 Application dismissed; 2 Application for costs dismissed
1 Sarah Farmer is a transgender person and the Applicant in these proceedings. The Respondent, Jim Markakis Pty Ltd trading as Richardson and Wrench Newtown, is a licensed real estate agent who, among other things, manages rental properties on behalf of owners. Miss Farmer complains that the Respondent discriminated against her on transgender grounds.
2 By letter dated 4 January 2001, Miss Farmer wrote to the President of the Anti- Discrimination Board (respectively “the President” and “the Board”) setting out the history of her dealings, which she alleged constituted transgender discrimination, with the Respondent agent.
3 By letter dated 29 October, 2002 Miss Farmer advised the Board that she was not proceeding with any allegation lodged outside the statutory time period (Anti- Discrimination Act 1977 (“the Act”) s 88(4)).
4 The Board attempted to conciliate Miss Farmer’s complaint without success. By letter dated 26 February 2003, the President referred the complaint to the Administrative Decisions Tribunal under s 94(1) of the Act.
Relevant legislative provisions
5 Section 38 M of the Act makes it unlawful for a person who provides (whether or not for payment) goods or services to discriminate against another person on transgender grounds:
- (a) by refusing to provide the person with those goods or services, or
(b) in the terms on which the other person is provided with those goods or services.
6 Section 38N(1) of the Act makes it unlawful for a person, whether as principal or agent, to discriminate against another person on transgender grounds:
- (a) by refusing the person's application for accommodation, or
(b) in the terms on which he or she offers the person accommodation, or
(c) by deferring the person's application for accommodation or giving the person a lower order of precedence in any list of applicants for that accommodation.
7 The exception set out in s 38N(3) has no application in this matter.
8 Miss Farmer’s complaint is cast as a complaint of direct and indirect discrimination. The tests of so-called direct and indirect discrimination are set out in s 38B(1)(a) and s 38B(1)(b) of the Act and provide:
- 1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on transgender grounds if, on the ground of the aggrieved person being transgender or a relative or associate of the aggrieved person being transgender, the perpetrator:
- (a) treats the aggrieved person less favourably than in the same circumstances (or in circumstances which are not materially different) the perpetrator treats or would treat a person who he or she did not think was a transgender person or who does not have such a relative or associate who he or she did not think was a transgender person, or
(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who are not transgender persons, or who do not have a relative or associate who is a transgender person, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply, or
9 Section 38A provides that a reference to a person being transgender or a transgender person is a reference to a person, whether or not the person is a recognised transgender person:
- (a) who identifies as a member of the opposite sex by living, or seeking to live, as a member of the opposite sex, or
(b) who has identified as a member of the opposite sex by living as a member of the opposite sex, or
(c) who, being of indeterminate sex, identifies as a member of a particular sex by living as a member of that sex,
and includes a reference to the person being thought of as a transgender person, whether the person is, or was, in fact a transgender person.
10 Miss Farmer was born male. She began living as a female in 1997. It is not in issue that she is and was for the period covered by her complaint, a “transgender person” for the purpose of s 38A of the Act.
11 Miss Farmer gave oral evidence in these proceedings and in addition relied on a letter dated 1 December 2000 addressed to the Manager, Richardson and Wrench [George Hatzaras], which sets out in some detail her complaints. Rocco Tripodi, George Hatzaras and Jim Markakis gave evidence for the Respondent. In addition, the Respondent relies on the evidence of a tenant, Letita Jones, who swore a statutory declaration tendered in these proceedings. Ms Jones was not required for cross-examination.
12 Background The Respondent manages approximately 1200 rental properties. The Respondent’s evidence is that on average about 45 properties become available for rent each week.
13 Throughout the relevant period, the Respondent agent displayed a list of available rental properties in the window of its King Street Newtown office (“the rent guide”). The guide provided a brief description of each property and was updated on a regular basis. Properties were also advertised in the Sydney Morning Herald and through the Internet.
14 The Respondent made available rental properties for inspection by way of “open viewings”, appointment, or both. At open viewings, properties were “opened” to prospective tenants within set and advertised time. Alternatively, or in addition, properties could be inspected by appointment at a mutually convenient time provided the prospective tenant lodged a security deposit and provided suitable identification. According to Mr Hatzaras, the Respondent Agent’s Office Manager (from August 2000) the method of inspection selected depended on a number of factors, including the preferences of the owner, when the vacating tenant handed in the keys and the likely interest in the property.
15 It is not in issue that the Respondent Agent in order to maximise rental income attempted to find a replacement tenant as soon as possible once a property was vacated. According to Mr Hatazaras, it was not always possible to predict with any accuracy when a property would be available for inspection. That depended on a range of factors including whether the vacating tenant handed in the keys on the nominated date, the state of the vacated premises and importantly, whether cleaning or repairs were necessary.
16 If a prospective tenant wished to apply for a property, they were required to submit a written pro forma application, which was then forwarded to the property owner with a recommendation from the Respondent agency. Applicants were required to detail in that application their employment and rental history. Mr Hatzaras gave evidence that it was the Respondent’s practice to give preference to applicants with solid employment and rental histories.
17 According to Miss Farmer, she did not attend open inspections, as she felt uncomfortable because of her transgender status. She preferred the privacy afforded by an inspection by appointment. Throughout the relevant period, Miss Farmer did not submit a written tenancy application to the Respondent agency.
18 Mr Tripodi at all relevant times was a trainee-letting clerk employed by the Respondent. His job essentially entailed reception duties. He claimed to have dealt with a daily average of 50 enquiries from prospective tenants.
19 According to Mr Markakis, the service provided by the Respondent agency to prospective tenants was “lousy”. Prospective tenants were not encouraged to leave contact details as the volume of rentals made it difficult, if not impossible, to get back to everyone who had enquired about a particular property.
20 Perry Street incident Miss Farmer claims that in March 2000 she rang the Respondent agency in response to a property advertised in Perry Street and was told it was available for inspection. When she arrived at the Respondent’s offices about 15 minutes later, she was told by Mr Tripodi that the keys were “out”. According to Miss Farmer, after reminding Mr Tripodi of their earlier phone conversation, he searched for the keys and finally located them. Miss Farmer claims that Mr Tripodi stared for some time at her identification papers, which identified her as “Sarah Farmer”. Ms Farmer inspected the Perry Street property and found it unsuitable.
21 Mr Tripodi testified that he did not recall this incident.
22 Search for accommodation March to November 2000 According to Ms Farmer, following the Perry street incident she made one, possibly two, enquiries about advertised rental properties and was told by Mr Tripodi on each occasion that the property was either unavailable for inspection or had already been leased. She testified that she asked Mr Tripodi to contact her if nominated properties became available, but he did not.
23 Miss Farmer said that in about mid-May she had become disillusioned with what she saw as the “dismissive and discriminatory treatment” of her by the Respondent (and other real estate agents) and temporarily abandoned her search for rental accommodation.
24 In about late September / early October 2000 Miss Farmer said she took a message from Mr Tripodi for a fellow employee. Miss Farmer said that in the course of that call she asked Mr Tripodi why no one from the agency had contacted her as requested and he invited her to drop in at the office.
25 According to Miss Farmer after this call she resumed her search for accommodation contacting the Respondent on three, possibly four, occasions. She claims that on each occasion she was told that the relevant property had been let or was unavailable for inspection.
26 Brown Street incident According to Miss Farmer, on or about 20 November 2000, she made an inquiry about a two-bedroom unit in Brown Street that had been advertised in the Respondent’s window. She claimed Mr Tripodi told her the property would not be available for inspection for another day or two. Miss Farmer said she told Mr Tripodi she was very interested in the property and asked to be contacted if anything arose. The following day she again called in to the Respondent’s offices and was told, by someone other than Mr Tripodi, that the property was still unavailable. When Miss Farmer visited the Respondent’s offices on the Friday of that week [November 25], she was told the property had been let.
27 Mr Tripodi claims not to remember Miss Farmer’s visit on 20 November. His evidence was that he had a vague recollection that Miss Farmer may have called in to the office once asking about keys.
28 Ms Jones had been a tenant in the same block of units as the disputed Brown Street premises. Sometime before 20 November she became aware that the disputed unit was to be vacated, and re-let at a lower rent than she had been paying. She stated that when she saw the property advertised in the Respondent’s window on 23 November she asked about it, and was told the unit could be inspected the following day. She arrived at the Respondent’s offices first thing the following morning, and after viewing the property, submitted a written application, which was accepted.
29 In a letter dated 2 November, the vacating Brown Street tenant advised that he would hand in the keys on 19 November. They were not returned until 23 November.
Mr Tripodi’s treatment of Miss Farmer
30 When told by Mr Tripodi that the Brown street property had been let, Miss Farmer demanded to know why she had not been contacted. She claimed that Mr Tripodi merely shrugged his shoulders and said that he had contacted everyone he was required to. In cross-examination he conceded that, while he endeavoured to get back to everyone who left a message with the office, it was not always possible to do so.
31 Miss Farmer then demanded to see the manager. Mr Tripodi rang Mr Hatzaras and announced, “There is a gentleman here to see you”. According to Miss Farmer Mr Tripodi smirked as he said these words. This is denied. In a letter dated 1 December 2000 addressed to Mr Hatzaras, Miss Farmer wrote:
- “ There was a distinct smirk on his [Mr Tripodi’s] face as he told you there was a ‘gentleman’ there to see you. This was despite the fact that he had seen me previously several times in female attire and that particular day was wearing a long skirt. As I explained to you, I realise that sometimes people react to my voice, however his disdain for myself was blatantly evident at this time. I told him to wipe the smirk off his face, twice, and then you came along.”
32 At the time, Miss Farmer was standing behind the counter which was roughly at waist height. Mr Tripodi claimed that at the time he had thought Miss Farmer was a man. He said he recalled that she had hair on her chest and thought from memory that she did not have breasts. He claimed he had made an honest mistake only becoming aware that Miss Farmer was a transgender person when later advised by Mr Hatzaras.
33 Miss Farmer attested that at the time she did not have hair on the upper part of her chest and at the relevant time had developed breasts and was wearing female attire. She said was deeply embarrassed and hurt by this incident.
34 Meeting with Mr Hatzaras At her request Mr Hatzaras met with Miss Farmer in respect of Brown Street property and Mr Tripodi’s announcing her as a man. Mr Hatzaras agreed to look into these complaints.
35 Miss Farmer’s evidence is that the first question put to her by Mr Hatzaras was whether she was employed. She advised she had recently completed a six-month contract and was currently working on a freelance basis.
36 According to Mr Hatzaras, at the close of the meeting he had been left with the impression that Miss Farmer was happy and had left it at that. He gave evidence that it had not been his understanding that he or anyone else in the agency would be getting back to her.
37 21 December 2000 Incident Miss Farmer gave evidence that on 21 December 2000 she visited the Respondent’s premises offices to ask about an advertised property. According to Miss Farmer, Mr Tripodi saw her and walked off. This is denied. Mr Tripodi claimed he did not see Miss Farmer. According to him he first became aware of Miss Farmer’s visit was when he was summoned from lunch. Miss Farmer then advised that she intended to take him to the Board.
Issues
38 The scope of Miss Farmer’s complaint is limited in time to the period 4 July 2000 to 6 January 2001. Miss Farmer asserts that during that period the Respondent through its employees, unlawfully discriminated against her by:
- Refusing to allow her the opportunity to inspect nominated properties (Points of Claim paragraph (a) and (b);
Failing to return her telephone calls (Points of Claim paragraph (b);
Refusing to give her the opportunity to inspect and apply for the Brown Street property;
Failing to advise her that the Brown Street property had become unavailable;
Introducing her in public as a man;
Refusing to serve her on 21 December 2000;
39 It is asserted that these allegations constitute direct discrimination as defined by s 38B(1)(a). In respect of each allegation we must ask:
- - Does the alleged conduct fall within one or more of the substantive provisions of the Act?
- If so, did the Respondent treat Miss Farmer less favourably than it treated, or would have treated, a person who is not a transgender person in the same circumstances, or in circumstances which were not materially different?
- If yes, was one of the grounds for this less favourable treatment was because Miss Farmer was a transgender person?
40 In addition, Miss Farmer contends that Mr Hatzaras’ inquiry about her employment status constitutes indirect discrimination as defined by s 38B(1)(b).
Scope of s 38N and s 38M
41 Section 38N of the Act proscribes transgender discrimination in accommodation. Relevantly it makes it unlawful for a person, whether as principal or agent, to discriminate on transgender grounds by refusing the person's application for accommodation, or by deferring the person's application for accommodation or giving the person a lower order of precedence in any list of applicants for that accommodation.
42 It is submitted for the Respondent that the conduct of which Miss Farmer complains, specifically the alleged failure to allow her inspect rental properties, does not fall within the provisions of s 38N(1) as, at no relevant time did she “make an application for accommodation”.
43 As noted the practice of the Respondent agency was to invite prospective tenants to inspect advertised rental properties and if found suitable, to submit a written pro forma application. That application was then vetted by the Respondent agent and referred to the property owner for approval. Miss Farmer did not submit a written application at any time. Her claim is in effect that by deliberately preventing her from viewing properties the Respondent denied her the opportunity to get to first base. This she argues constitutes “refusal of an application for accommodation”.
44 If the Respondent’s submission is accepted, s 38N(1) would only apply, in respect to its operations, where a written pro forma application had been submitted and subsequently refused. Any preceding conduct would not be caught by the provision.
45 The resolution of this issue turns on the proper construction of the Act. As a starting point, because the Act is remedial legislation, it should be construed broadly to give effect to the objects and purposes of the Act. Section 33 of the Interpretation Act 1987 (NSW) provides that in interpreting a statutory provision a construction that would promote the purpose or object underlying the Act shall be preferred to a construction that would not, irrespective of whether that purpose or object is expressly stated.
46 The term ‘application’ is capable of broad application. The Macquarie Dictionary 3rd Edition1999 defines it to mean ‘the act of applying,’ ‘the act of requesting’ and ‘a written or spoken request or appeal’.
47 The Respondent urges us to accept a narrow view of the term “application” in the context of s 38N. In essence it contends that an application should be seen as something akin to an offer as understood in contract law i.e. a promise which, if accepted, is capable of forming the basis of a legally binding contract. This, in our view, this is an unduly restrictive view of the provision. The provision in our opinion is broad enough to catch an expression of interest in relation to a rental property and a request to inspect property for the purpose of determining whether a written tenancy application should be made.
48 It is not in issue that the Respondent provided ‘services’ to Miss Farmer as defined in s 4 of the Act and that all of the alleged conduct of which Miss Farmer complains is a capable of falling within s 38M of the Act.
Allegation 1: Refusal to allow Applicant to inspect nominated rental properties
Findings and Conclusions
49 Miss Farmer’s claim is that on each time she enquired about advertised rental properties she was told by Mr Tripodi that the property had been let or was unavailable for inspection. She contends that it is improbable that each advertised property would have been unavailable and that the real reason she was given this advice was that the Respondent agent, through Mr Tripodi, had decided that she would be an unsuitable tenant, because of her transgender status.
50 This alleged conduct could constitute a refusal to accept and/or a deferral, of an application for accommodation and accordingly in our view is capable of falling within s 38N(1)(a) and/or s 38N(1)(c) of the Act. In addition this alleged conduct could be caught be said to constitute a refusal of a service (s 38M(a) of the Act).
51 The critical factual issue for determination is whether some or all of the properties in which Miss Farmer had expressed interest, were in fact available. Simply put, was Miss Farmer misled? If so, it would provide powerful evidence of less favourable treatment.
52 We accept Miss Farmer’s evidence that over two separate periods, broadly March to May, and late September/ October to 20 November 2000, she sought to inspect a number of rental proprieties advertised by the Respondent, but was told that the keys to those properties were unavailable or the properties had already been let. The best evidence is that for the period within the scope of the complaint, Miss Farmer made enquiries about three, possibly four advertised properties, in addition to the Brown Street unit. Miss Farmer conceded that she could not be confident about this estimate. Nor could she recall when these enquiries were made, the properties concerned or the stated reasons given for each property being unavailable.
53 The evidentiary difficulty this creates is obvious. Neither the Respondent nor the Tribunal can refer to any records which would either confirm or deny Miss Farmer’s suspicions that the properties were in fact available and were refused to her on the basis complained of.
54 An inference may arise on Miss Farmer’s evidence, as far as it goes, that the Respondent agent engaged in unlawful discriminatory conduct. On the other hand, there may well have been reasonable and lawful explanations for the conduct of the Respondent.
55 It is simply impossible, given the paucity of evidence, to resolve the issue. On the material before us we cannot be reasonably satisfied that the Respondent agent withheld rental properties from the Applicant in the manner as alleged. Given this finding, there is no basis from which to conclude that Miss Farmer was afforded less favourable treatment. Accordingly, this allegation of unlawful discrimination is not substantiated.
Allegation 2: Failure to refuse calls
56 Miss Farmer claims that throughout the relevant period, Mr Tripodi repeatedly failed to get back to her about properties in which she had expressed interest. This alleged conduct could constitute contravention of s 38M(a) of the Act.
Findings and Conclusions
57 Miss Farmer claims that Mr Tripodi failed to contact her on “many” occasions lacks particularity and is unsupported. We have no information which could assist us to estimate when, and how many times, her enquiries were ignored, if indeed that was the case. Again, if Miss Farmer’s evidence is accepted, an inference adverse to the Respondent arises, but nothing more than that. This may in turn raise a suspicion of unlawful conduct on the Respondent’s part, but, of course, mere suspicion does not amount to reasonable proof. Given the paucity of evidence supporting Miss Farmer we cannot be satisfied that the alleged pattern of conduct of which she now complains did occur.
Allegation 2: Brown Street property
58 Miss Farmer claims that her application for the Brown Street property was effectively refused by the Respondent’s decision to allow Ms Jones a prior opportunity to inspect the property, and to deny her the same opportunity. This alleged conduct, in our view, is capable of falling within the provisions of s38N(1)(a) and/or s 38N(c).
Findings and Conclusions
59 Miss Farmer’s uncontested evidence is that she told the Respondent on two occasions that she wished to lease the Brown Street property, subject to a satisfactory inspection. Miss Farmer was not contacted as requested when the keys finally did become available. The history given by the Respondent concerning the events of the week commencing 20 November is accepted. (See Exhibit R5, Annexure A.)
60 Less Favourable treatment In determining whether the treatment afforded Miss Farmer was less favourable than the treatment, which might have been given to a non transgender person, we need first to select an appropriate comparator. The only other prospective tenant in relation to whom we have any firm evidence is Ms Jones. Her circumstances, in our view, were materially different to those of Miss Farmer. She inquired about the property immediately or shortly after the keys had been handed in. Miss Farmer on the other had made enquiries some days earlier.
61 We have little evidence about other persons who expressed interest in the property before November 24. We know, through Mr Tripodi, that Miss Farmer and Miss Jones were not the only people interested in the property. While Mr Tripodi told Miss Farmer that he had got back to everyone who left their name, we do not know whether they were contacted before or after Ms Jones’ inspection. All we know from the Respondent’s records is that no one other that Ms Jones inspected the property. Given the paucity of evidence, members of this group do not provide a useful basis for comparison.
62 In the absence of satisfactory evidence of an actual comparator, we must employ a hypothetical one. An Appeal Panel in Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 took the view at [45] that in a claim of direct discrimination, any determination of less favourable treatment should precede causation “because if there is no relevant differential treatment it is unnecessary to consider the issue of causation.” The recent decisions of Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [63]-[65] and Martin v McKensey (No. 2) [2003] NSWADT 126 at [46] identify the practical difficulties in first determining less favourable treatment when a hypothetical comparator is used and advising that in such a case the questions posed by the Panel should be asked in reverse order. We endorse that approach and, having determined that there is no suitable actual comparator, move to address the issue of causation.
63 Causation There is no direct evidence that one of the reasons the Respondent failed to contact Miss Farmer when the keys to the Brown Street unit were finally returned was that she was a transgender person. Miss Farmer’s case relies entirely on circumstantial evidence. She invites us to draw that inference based on Mr Tripodi’s alleged poor treatment of her throughout the course of 2000.
64 The Respondent submits that Ms Jones was objectively the better applicant given her strong rental and employment history and the decision to select her as the tenant can be explained on that basis. This submission in our view is largely irrelevant. The evidence indicates that Miss Farmer was not trumped because of Ms Jones’ supposed superior credentials. Before 25 November, the Respondent was not in a position to assess the respective merits of Miss Farmer and Ms Jones. Nothing was known about Miss Farmer’s finances at that time. What was known by the Respondent of Ms Jones’ finances, as far as we can tell from the evidence, was at best equivocal. The real issue, in our view, is why Ms Jones was given was given a head start to inspect, and consequently formally apply for the unit.
65 Before meeting with Mr Hatzaras, Mr Tripodi was essentially Miss Farmer’s sole contact within the Respondent’s agent. While he held a junior position within the agency and played no formal role in determining tenancy applications, he was nevertheless well placed to exert some influence. He was, in effect, the gatekeeper for those rental properties managed by the Respondent and could notify (or not) prospective tenants when nominated properties became available. It is apparent from the Brown Street chronology that such information could be critical in determining who would eventually become the successful applicant. Miss Farmer submits that Mr Tripodi’s claim that before 25 November he neither knew nor thought she was a transgender person and, in any event, had only a vague memory of her, is entirely implausible. She points to the frequency of her visits and contends that her first meeting with Mr Tripodi over Perry Street would not easily be forgotten.
66 While we accept that Miss Farmer visited the Respondent’s offices on a number of occasions throughout 2000, dealing primarily, if not exclusively, with Mr Tripodi, we cannot be satisfied on balance that Mr Tripodi remembered her from these visits at the relevant time i.e. the week commencing 20 November. While these visits may have been memorable to Miss Farmer, it does not follow that they had the same significance to Mr Tripodi. Given the sheer volume and diversity of people with whom he came in contact, his claim is entirely plausible.
67 We turn now to Mr Tripodi’s public announcement of Miss Farmer as a man, which she contends was deliberate and malicious. Much evidence was given about Miss Farmer’s appearance at the time, some of it in conflict. Miss Farmer, in our view, is better placed than any other witness to give an accurate account of what she looked like three years ago. It does not necessarily follow however that Mr Tripodi’s claim that he had made an honest mistake lacks veracity. It is not in issue that Miss Farmer had some features typically considered ‘male’. She was well built with a deep voice. The encounter between the two was brief and heated. Miss Farmer was understandably agitated and disappointed that she had lost out on the Brown street property and did not seek to hide this. Mr Tripodi was young, inexperienced, and apparently taken aback by Miss Farmer’s complaint. The lower part of Miss Farmer’s body was obscured. Accordingly, Mr Tripodi was unable to see that she was wearing a skirt.
68 Taking into account all the circumstances surrounding this we cannot be satisfied on balance that Mr Tripodi’s mistake was deliberate. Nor are we satisfied that that at the times the key were issued to Ms Jones rather than to Miss Farmer [November 23/24] that Mr Tripodi remembered Miss Farmer and identified her as a transgender person.
69 In our view the most probable explanation for the failure of anyone from the Respondent to contact Miss Farmer when the keys were eventually returned, was that Ms Jones’ fortuitous timing had spared them the trouble of chasing prospective tenants. Ms Jones happened to be at the right place at the right time. Her application could be processed and the property leased at minimum cost and inconvenience. As Mr Markakis conceded, the Respondent offered prospective tenants “lousy service”. Its primary interest was securing a suitable tenant as quickly as possible. The practice of queue jumping evidence seems to be of little or no concern to the Respondent. This may not have been “fair” in a general sense, but it does not necessarily amount to discrimination on a specific ground. If the Respondent’s practices were unfair in this sense, the complainant may have cause to complain to the Department of Fair Trading or the Real Estate Institute, but there is no remedy under the Act.
70 As we are not satisfied that the necessary element of causation has been made out, we find that this allegation of unlawful discrimination is not substantiated.
Allegation 4: failure to notify Miss Farmer Brown Street property unavailable
The claim
71 Miss Farmer claims that one of the reasons the Respondent agent failed to advise her after the Brown Street property had become unavailable, thus putting her to the inconvenience of a further futile visit, was that she was a transgender person. This alleged conduct could constitute a breach of s 38M(a).
Findings and Conclusions
72 The Respondent’s failure to notify Miss Farmer after the property had been secured by Ms Jones [24 November] in our view constitutes less favourable treatment. The critical issue is whether one of the grounds for that treatment was that Miss Farmer was, or was thought by the Respondent to be, a transgender person. As noted above, we decline to draw the conclusion that before 25 November Mr Tripodi recognised Miss Farmer from earlier visits and thought of her as transgender person. Given that finding, we cannot be satisfied on balance that one of the reasons he failed to contact Miss Farmer was on the grounds as alleged. Accordingly, this allegation of unlawful discrimination is not substantiated.
Allegation 5: Public Introduction of Miss Farmer as a ‘gentleman’
73 Given our finding that this conduct was not deliberate, there is no basis for concluding that the necessary elements of unlawful discrimination are made out. Accordingly, it is not necessary to determine whether this alleged conduct is capable of constituting unlawful conduct within the provisions of s 38M(a) of the Act.
Allegation 6: Refusal of service
74 Miss Farmer claims that when she entered the Respondent’s office on 21 December, Mr Tripodi saw her and refused to serve her. This alleged conduct may fall within s 38M(a) of the Act.
Findings and Conclusions
75 The evidence of both Ms Tripodi and Miss Farmer is unsupported and stands in direct conflict. From the limited material before us, we cannot be reasonably satisfied that Mr Tripodi ignored Miss Farmer, as alleged. Accordingly, this allegation of unlawful discrimination is not substantiated.
Indirect Discrimination
76 Miss Farmer claims that employment was a prerequisite to the Respondent’s acceptance of any tenancy application. She asserts that this constitutes indirect discrimination as defined by s 38B(1)(b) of the Act, contrary to the provisions of s 38N(1)(a).
77 Section 38B(1)(a) sets out the test of so-called indirect discrimination on transgender grounds. Indirect discrimination occurs when a requirement or condition, neutral in its terms and apparently applying equally to all persons, in fact disadvantages a particular group. For Miss Farmer’s claim of indirect discrimination to succeed, she must establish on balance: first, that the Respondent required her to comply with a requirement or condition; second, that a substantially higher proportion of non-transgender persons comply, or are able to comply, with that requirement or condition; third, the requirement or condition is not reasonable having regard to the circumstances of the case; and fourth, that she does not comply, or is not able to comply, with the requirement or condition.
The requirement or condition
78 Miss Farmer identified the relevant condition or requirement as follows: that tenancy applicants be employed. She reaches that conclusion on the basis of the 25 November meeting where Mr Hatzaras asked whether she was in employment. The Respondent does not deny that employment status is an important factor but contends it is not determinative. The Respondent’s evidence is to the effect that providing a prospective tenant can establish that they can meet their financial obligations under the tenancy agreement, lack of employment was not fatal.
We proceed on the basis that a more appropriate formulation of the requirement is, as stated by the Respondent, a demonstrated ability to pay rent.
Is the Requirement Unreasonable?
79 It is not in issue that Miss Farmer was unable at the relevant time to comply with the identified condition. Before we consider whether, as asserted that a substantially higher proportion of non-transgender persons comply, or are able to comply, with the Respondent’s requirement, we ask whether the requirement is reasonable.
80 Miss Farmer asserts “due to widespread discrimination when seeking work, transgender persons are simply not able to obtain employment and are thus unable to comply with the requirement of having an employer”. Consequently, she asserts that transgender people are effectively excluded from the rental market, and she asserts this is unreasonable.
81 Whether a condition or requirement is not reasonable is to be objectively assessed taking into account all relevant factors, including the nature of the activity in which the alleged discriminator is engaged. All the circumstances must be taken into account. The principles to be applied in determining reasonableness in the context of a claim for indirect discrimination were usefully distilled by Sackville J in Commonwealth Bank v HREOC (1997) 80 FCR 78 at p 110-112. (See also Waters & Ors v Public Transport Corporation (1991) 173 CLR 349; Styles v Department of Foreign Affairs and Trade (1988) ALR 408; Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251). In The State of New South Wales v Amery & Ors (EOD) [2003] NSWADTAP 16 the Appeal Panel noted that the relevant factors will differ from case to case but will usually include the financial circumstances of the alleged discriminator, including its ability to meet the needs of the complainant.
82 Miss Farmer’s submission, as we understand it, is that it is unfair or inequitable that transgender persons are subject to what she sees as the domino effects of discrimination, not that the condition imposed by the Respondent is unreasonable. This submission rests on a flawed understanding of the element of reasonableness in the context of indirect discrimination. The authorities make clear that all of the circumstances of the case must be taken into account which include the reason for the alleged discriminator’s insistence upon the relevant requirement. While it may be a cause for concern that a particular group or groups is disadvantaged through the imposition of a particular condition, that, of itself, does not mean that the requirement (or condition) is not reasonable. It is difficult to see how a requirement (broadly expressed) that prospective tenants demonstrate that they can pay rent, could be seen to be unreasonable, in the context of the private rental market.
83 We are not satisfied that the relevant condition is unreasonable. Given this finding it is not necessary for us to determine whether the remaining elements are made out.
84 Accordingly, this allegation of unlawful discrimination is not substantiated.
Costs
85 The Respondent seeks an order for costs. The Act provides that each party shall pay his of her own costs: s 114(1). The Respondent is unable to demonstrate any special circumstances that would justify an exercise of our broad discretion to award costs: s 114(2). Consequently, there will be no order as to costs.
Order
1. The complaint of discrimination is dismissed.
2. The application for costs is dismissed.
Decision Revised 27 November 2003 - to correct applicants name on cover sheet.
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