Formal equality is when regardless of a person’s circumstances, you:
- treat everyone the same way
- give everyone the same opportunities and levels of support
Substantive equality is when you think of a person’s circumstances and:
- make it fairer for them
- look at what you can do to address disadvantage and discrimination they experience
A special measure uses the principle of substantive equality to try and achieve equality in the long term.
What a special measure is in the Victorian public sector
In the Equal Opportunity Act 2010, a special measure is a lawful way to try and give an employee or candidate substantive equality.
It’s one way to help people who work in the public sector to have the same chance to succeed, based on their needs.
In the public sector, we have workforce strategies that aim to make our workforce reflect Victoria’s diverse population, such as:
- Barring Djinang: Aboriginal Employment Strategy for the Victorian public sector
- Getting to work: Victorian Government disability employment action plan 2018-2025
This means you have an obligation to make your recruitment as inclusive as possible. You can use a special measure to help.
To limit the use of special measures to those who need them, the law has:
- a list of protected attributes that apply
- criteria a person from a group must meet
Special measures protected attributes
Protected attributes are what the Equal Opportunity Act 2010 says you can consider if you want to use a special measure.
The protected attributes are:
- employment activity
- gender identity
- industrial activity
- lawful sexual activity
- marital status
- parental status or status as a carer
- physical features
- political belief or activity
- religious belief or activity
- sexual orientation
- an expunged homosexual conviction
- personal association (whether as a relative or otherwise) with a person who is identified by reference to any of the above attributes.
Special measures criteria
The Equal Opportunity Act 2010 has rules and criteria you must meet to use a special measure.
A special measure must:
- be taken for the purpose of promoting or realising substantive equality for members of a group with a protected attribute
- be undertaken in good faith to help promote or achieve substantive equality for members of the group
- be reasonably likely to achieve this purpose
- be a proportionate way of achieving the purpose
- be justified because the members of the group have a particular need for advancement or assistance
You must meet all these criteria to justify your use of a special measure. You must keep a record of your reasons for using it, in case of a complaint.
If you can’t justify your reasons for using a special measure, your action may be discriminatory.
You don’t have to get permission to use a special measure but talk with your HR or legal team to assess if you’ve met these criteria and your use of the special measure complies with any internal policies. You can also use our checklist.
If you can’t meet these criteria
If you can’t meet these criteria but still want to use a special measure, you must apply for an exemption at the Victorian Civil and Administrative Tribunal.