Equal Opportunities Commission


Marital Status Discrimination

Marital Status Discrimination


Whilst every effort has been made to ensure the accuracy of the contents of these case digests, they are for general guidance on the subject matters only and should not be treated as a substitute for specific legal advice. You are advised to seek advice from your legal advisor as and when necessary.

Waterhouse v Bell [1991] 25 NSWLR 99, NSWCA

[1991] 25 NSWLR 99, NSWCA


The Plaintiff was married to a man who had been warned off all race courses under the overall control of the Australian Jockey Club (AJC) due to his involvement in a racehorse substitution scam. The Plaintiff applied to the AJC for a trainer’s license, but was refused pursuant to Australian Rule of Racing 182(2)(a), which says that “no horse shall be permitted to race which is wholly or partially owned or leased by such disqualified person or such person’s spouse, or in the winnings of which such disqualified person or such a person’s spouse has an interest.” In a letter explaining its decision, the AJC explained that the refusal was not due to the fact that the Plaintiff was a married person per se, but that she was married to someone who had been warned off every racecourse in Australia and elsewhere. The AJC was concerned that the Plaintiff was susceptible to her husband’s corrupting influence. The Plaintiff initiated a complaint with the Equal Opportunity Tribunal against the AJC, claiming marital status discrimination contrary to section 39(a) of the Anti-Discrimination Act 1977.

The AJC argues that Boehringer Ingleheim Pty Ltd v Reddropp is controlling in this case. In Reddrop , the plaintiff was refused a position with the defendant company because her husband worked for a competitor of the company. The court in that case held that the company did not discriminate against the plaintiff on the ground of her marital status. Section 39(1) proscribes discrimination based on (a) the status of being married, (b) some particular character that all or nearly all married persons have, and (c) some particular character which married persons are generally believed to have whether or not they in fact have it; it does not proscribe discrimination based on characteristics or proclivities of a particular spouse. The finding that the plaintiff’s relevant characteristic (i.e. being married to an employee of the competitor) was personal to her and was not generally imputed to all married women took the case outside the prohibition of the Act.

Court’s decision

The Court distinguished Reddrop , finding that it was not controlling in this case. In Reddrop, the court’s decision was grounded upon a characteristic which was particular to Mrs. Reddrop, namely having a close relationship with an employee of a competitor. In this case, however, the AJC’s decision was not grounded on the particular characteristic of the Plaintiff’s. The reason the AJC gave for believing her to be liable to be corrupted by her husband was that she was married to him. However it was not found that the Plaintiff had, or was believed by the AJC to have, personal character deficiencies which rendered her vulnerable to the corrupting influence of her husband; in fact, the AJC said it held the Plaintiff in the highest regard in the racing industry. The absence of any suggestion of a relevant character deficiency of the Plaintiff’s points strongly in favour of the view that the AJC considered the Plaintiff corruptible by her husband because it believed corruptibility at the hands of one’s husband is a characteristic generally attributed to all married woman. This finding places the case within section 39(1) of the Act.