December 2021 Building a preventative culture 2.2 Addressing systemic discrimination Positive duties may also contribute to addressing what is described as ‘systemic discrimination’. Systemic discrimination is a particularly insidious form of discrimination that is serious in nature and relates to a class or group of people. The UN Committee on Social, Economic and Cultural Rights refers to systemic discrimination as the ‘legal rules, policies, practices or predominant cultural attitudes in either the public or private sector which create relative disadvantages for some groups, and privileges for other groups’.9 The Council of Europe defines ‘structural discrimination’ as based on the way society is organised and institutions are structured. It operates ‘through norms, routines, patterns of attitudes and behaviour that create obstacles in achieving real equality or equal opportunities’.10 These patterns and behaviours can be unintended, unconscious or informal in nature.11 Systemic discrimination includes the small but cumulative manifestations of a culture of inequality. These can be so embedded that they are difficult to identify and isolate, and may appear minor in their individual impact, so as not to be practically amenable to a legal claim, despite broader implications for social or organisational culture as a whole. Examples of conduct that may amount to systemic discrimination include: • refusal to provide goods or services to people who have a certain protected attribute – for example, an insurance industry wide limitation or complete restriction on income protection insurance for people with a disclosed psychological disability • financial institutions adopting more restrictive lending practices (and/or denial of certain types of credit cards) for persons with certain income streams connected to their age • designing a product intended to improve the experience of the majority but which effectively excludes people with a particular attribute, such as vision impairment • training requirements with timeframes for completion, that do not take account of maternity leave, may have a negative impact on women of a particular age. Attention may be drawn to such systemic issues through individual complaints, but also through media attention on the issues – and not necessarily with a complaint. Although some complaints may be conciliated on an individual basis, the policy in a particular place may not have changed, indicating a more pervasive and systemic problem.12 60 FREE AND EQUAL An Australian Conversation on Human Rights