Workplace Discrimination (General)
Under Federal and State Laws, it is an offence to discriminate (i.e. treat someone unfairly compared with others) on the basis of a number of characteristics. These vary between jurisdictions but can include: race, colour, sex, religious and political views, age, disability, sexuality, caring responsibilities, intersex status, etc.
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.
This occurs when a person is treated unfairly or harassed because of their sexuality (such as being homosexual, lesbian, transgender or transsexual), or believed to be a particular sexuality.
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 attributes 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.
Indirect discrimination is generally only unlawful if it is unreasonable. For example, if it was possible to demonstrate that a job genuinely required a person to be a certain height (because they had to be able to reach a certain height to operate certain machinery, for example) then this would not generally be unlawful indirect discrimination.
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 assistance 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 (eg a job advert for a female employee to work in a support centre that focused on providing services to female victims of domestic violence).Special “measures which are designed to achieve equality” for those affected by discrimination (i.e. “positive discrimination” such as guaranteeing job interviews for Aboriginal or Torres Strait Islander applicants).
- Actions in “direct compliance with legislation”, such as the payment of lower “junior rates” to younger employees if this is provided for in the relevant award or enterprise 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 employers want to be able to avoid legal liability for the actions of the employee who actually caused the problem, an employer will need to show that at the time of the alleged discrimination it had:
- An easily understood anti-discrimination policy distributed to all your employees;
- A workable and fair grievance/complaint handling procedure; and
- Regular discussion and training for employees about what policies and procedures they must follow.
Employees who unlawfully discriminate can be held liable under the law and are often 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.
There is now a “positive discrimination” to take all reasonable steps to eliminate sex discrimination and sexual harassment in the workplace. This means that employers can have breached their duties even if no harassment or discrimination has yet occurred, because they are not taking active steps to prevent it from occurring.
Creating a workplace culture which clearly defines what behaviour we do accept and do not accept in the workplace, is one of the keys 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.
We have created a free audit and risk assessment tool to assist employer with identifying and preventing sexual harassment and sex discrimination in their workplace. A similar approach can be followed for other types of unlawful harassment and discrimination.
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 blog 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.
Looking for further help?
To speak to one of our HR consultants, or find out more about our HR outsourcing services, just fill out the form below and we’ll be in touch.