WORKPLACE DISCRIMINATION KNOWLEDGE BASE
Under Federal and State Laws, it is an offence to discriminate (treat them unfairly compared with others) on the basis of race, colour, sex, religious and political views, or other status, in your interactions, including in employment, and the provision of goods and services to customers.
Types of Unlawful Discrimination
Types of unlawful discrimination include:-
It is unlawful to discriminate against an individual because they need to care for or support a child or other immediate family member.
This occurs when a person is treated unfairly or harassed because of their gender. Discrimination against a woman because she is pregnant is also considered sex discrimination.
This occurs when a person is treated unfairly or harassed because of their race, colour, ethnic background, ethno-religious background, descent or nationality.
Religious or Political Views
This occurs when a person is treated unfairly or harassed because of their actual or assumed religious and/or political beliefs and/or activities. This only extends to those beliefs or views that are not against the law.
This occurs when a person is treated unfairly or harassed because of their age – for example, because people think they are too old, too young or too middle aged. Forcing people to retire at a certain age is also against the law.
Marital Status Discrimination
This occurs when a person is treated unfairly or harassed because of their particular marital status, for example, because they are single, or married, or living in a de facto relationship.
Sexual Preference Discrimination
This occurs when a person is treated unfairly or harassed because they are homosexual, lesbian, transgender or transsexual, or believed to be any of the above.
This occurs when a person is treated unfairly or harassed because they have a disability, or someone thinks they have a disability. It is also against the law to treat a person unfairly or harass them because they had a disability in the past, or because they will or may have one in the future.
Discrimination by Association
This occurs when a person is treated unfairly or harassed because of the sex, race, age, marital status, homosexuality/lesbianism, transgender status or disability of one of their relatives, friends or work colleagues.
Direct & Indirect Discrimination
There are two types of discrimination that are prohibited by legislation, direct and indirect.
Direct discrimination is where someone is treated unfairly or unequally simply because they belong to a particular group or category of people. For example, an employer who refuses to employ someone because they are of Aboriginal or Torres Strait Islander descent is directly discriminating against that person.
Indirect discrimination happens when a business practice, policy or procedure which appears on its face to treat everyone the same, however, has an underlying unequal or disproportionate effect on different groups of people according to their sex, race, etc.
For example, an employer who says that they need a person over 180cm tall to do a job is likely to end up discriminating against women and some ethnic groups because they are less likely to be this height then men or people from other ethnic groups. If it possible to show that the job does not need someone at that particular height or that the position could be easily adapted to suit people who aren’t that tall, then they could be indirectly discriminating on the grounds of sex and race.
The law contains a number of exemptions which allow discrimination in specified circumstances. The main exemptions are:
- Where a person with a disability is unable to perform “the inherent requirements of the job”.
- Where the employment of a person with a disability requires special attention in order to do the work and “the provision of those special services or facilities would cause unjustifiable hardship to the employer”.
- Where it is a “genuine occupational requirement” for a job that a person be of a certain sex or race.
- Special “measures which are designed to achieve equality” for those affected by discrimination (i.e. positive discrimination).
- Actions in “direct compliance with legislation”.
- The payment of “junior rates” to employees if provided for in the relevant award or agreement.
In general, it is against the law for an employer to act in a discriminatory way. Also, unless the employer can show that they took “reasonable steps” to prevent the discrimination from happening, they are responsible when an employee behaves in a discriminatory way. This is called vicarious liability.
Case law now tells us that if you want to be able to transfer legal liability to the employee who actually caused the problem, you will need to show that at the time of the alleged discrimination you had:
- An easily understood anti-discrimination policy distributed to all your employees;
- A workable and fair grievance/complaint handling procedure; and
- Regular discussion with your employees about what policies and procedures they must follow.
Employees who discriminate can be held liable as accessories under the law and are joined as a respondent to a complaint along with their employer. Employees can also be liable if they induce or aid other employees to discriminate.
Workplace culture, what we accept and do not accept in the workplace, is the key to preventing discrimination at work. The goal is to create a workplace where everyone is treated equally and with respect, individual differences are appreciated, and it is accepted that everyone has the right to feel comfortable and safe at work.
Some ways this can be achieved include:
- Developing anti-discrimination policies and ensure that all employees are familiar with them;
- Establishing an appropriate grievance/complaint handling mechanism;
- Keeping appropriate records about complaints;
- Educating your employees about their rights and responsibilities regarding discrimination; and
- Ensuring that recruitment and promotion practices and training opportunities are based on merit.
Workplace Gender Equality
The Workplace Gender Equality Act 2012 promotes gender equality (including equal pay), removal of barriers in the workplace, eliminates discriminatory practices and promotes flexibility at work (including in relation to family and carer’s responsibilities).
The standard looks at:
- Gender composition of the workforce;
- Equal remuneration between men and women; and
- Availability and utility of terms and conditions around flexibility.
About Employment Innovations
Employment Innovations is one of Australia’s leading providers of employment services designed to increase productivity and ensure compliance. Its services and solutions include all the tools that every Australian small to medium sized employer needs – including workplace advice, legal services, payroll solutions, migration, human resource management and HR software.
The information provided in these knowledge base articles is general in nature and is not intended to substitute for professional advice. If you are unsure about how this information applies to your specific situation we recommend you contact Employment Innovations for advice.
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