JQ v Double Bay Out of School Hours Inc. (No. 2)

In the case of JQ v Double Bay Out of School Hours Inc., the applicant, JQ, alleged that the respondent, Double Bay Out of School Hours Inc., discriminated against her on the basis of her marital status and subsequently victimised her. The case was heard in the Australian Human Rights Commission. The applicant, who had recently divorced, claimed that her shared care parenting responsibilities were treated as a characteristic of her marital status, leading to indirect discrimination and subsequent victimisation. The respondent denied these allegations and argued that the applicant had failed to mitigate her damages.

The court was tasked with determining whether the applicant's shared care parenting responsibilities could be considered a characteristic of her marital status, and if so, whether this amounted to indirect discrimination. Additionally, the court needed to assess whether the respondent's actions constituted victimisation and, if so, what compensation should be awarded to the applicant. The court also needed to consider the applicant's failure to mitigate damages and whether this should impact the amount of compensation payable.

The court found that the applicant's shared care parenting responsibilities could not be considered a characteristic of her marital status, and therefore, there was no indirect discrimination. However, the court did find that the respondent had victimised the applicant. The court ordered the respondent to pay the applicant $5,000 in compensation for the victimisation. The court also considered the applicant's failure to mitigate damages but did not reduce the amount payable on this basis.

In summary, the court dismissed the discrimination complaint but found that the respondent had victimised the applicant and ordered the respondent to pay $5,000 in compensation. The court's decision highlights the importance of understanding the characteristics that may be considered in discrimination cases and the need for parties to take reasonable steps to mitigate their damages.