Workplace discrimination
Discrimination occurs when a person, or a group of people, are treated less favourably than another person or group because of their background or certain personal characteristics (referred to in law as ‘protected attributes’. As an employer, you are required to take steps to prevent this from happening in the workplace.
What is unlawful discrimination?
Unlawful discrimination is discrimination based on protected attributes arising from State and Federal discrimination legislation.
Australian legislation protects people from being unlawfully discriminated against in public life (including in the workplace) on the basis of their:
Age
Race, colour, national origin, ethnic origin or immigrant status
Religious beliefs or political opinions
Sex, sexual orientation, intersex status or gender identity
Marital status
Pregnancy or breastfeeding
Familial status
Career responsibilities
Physical or mental disability
Trade union activity
Legal rights attached to additional protected attributes may be specified in relevant state and territory anti-discrimination legislation.
What constitutes discriminatory conduct?
Workplace discrimination takes many forms. All kinds of decisions, rules and beliefs that seem harmless on the surface can actually prove to be unfair to certain groups of people.
Discriminatory conduct may include:
Direct discrimination – treating one employee less favourably than another because of an attribute eg. age, gender, religion or belief, disability or sexual orientation.
Indirect discrimination – imposing a requirement or practice that unnecessarily disadvantages a certain group, for example, banning beards could disadvantage certain religious employees.
Victimisation – treating someone less favourably than others because they have complained about discrimination on the basis of a protected attribute.
Unfair or prejudicial treatment can occur at different stages in the employment relationship, including:
When recruiting and selecting staff.
In the terms, conditions, and benefits offered as part of employment.
Who is considered or selected for promotion.
Who is considered and selected for redundancy or dismissal.
What is direct discrimination?
Direct discrimination occurs when a person, or a group of people, is treated less favourably than another person or group because of their background or certain protected attributes.
It would be direct discrimination if a female applied for a job selling construction machinery, but the employer rejected the application because they believe that men have more technical knowledge and credibility with customers.
What is indirect discrimination?
Indirect discrimination occurs when a workplace requirement that appears to be neutral and the same for everyone has the effect of disadvantaging someone because of a protected attribute. The law dictates that the requirement needs to be reasonable.
It would be indirect discrimination to advertise a software engineering role at a “young and energetic tech startup”, since this implies being young is one of the inherent requirements of the role and that older candidates are less likely to be seriously considered.
Examples of workplace discrimination
Age discrimination
An example of age discrimination in the workplace would be a business owner not employing a younger worker based on the assumption that they lack commitment and will quickly find another job.
Racial discrimination
An example of racial discrimination would be if an employer hired a white candidate over a black candidate, despite the fact the black candidate is better qualified for the role, and this decision is made because the employer believes the white candidate will be “a better cultural fit”.
Gender discrimination
Demanding that people applying for work as firefighters be at least 6 feet tall may be considered indirect gender discrimination, since a female is much less likely to be this tall. This situation is more likely to deemed indirect discrimination if there is insufficient evidence to suggest the height requirement is reasonable and necessary.
Sexual orientation discrimination
If an employee working as personal trainer informed his coworkers that he was homosexual and the gym manager fired him on the grounds that “he would no longer fit in with such a masculine clientele”, this would be considered direct sexual orientation discrimination.
What is adverse action in the workplace?
The concept of adverse action or threatened adverse action is an essential component of the Fair Work Act 2009 (the Act).
The Act protects certain employee rights including workplace rights, and engaging in industrial activities, and offers protection from discrimination and sham arrangements. These are called the general protections.
Workplace rights include any benefits or responsibilities an employee may have under any workplace law, award or registered agreement, or order made by a body, including making a complaint or query regarding their employment, or initiating or participating in proceedings.
An employer must not take any adverse action against an employee or prospective employee because that person has, or has exercised or intends to exercise, a workplace right. An employer must also ensure that they do not take action to prevent an employee from exercising a workplace right which they have, or may have in the future.
Adverse action is anything an employer may do that affects the employee negatively. Adverse action is unlawful if it is taken against an employee, a former employee or a prospective employee for a specific, protected reason or because of certain attributes.
In relation to a current employee, adverse action includes:
Dismissing the employee.
Injuring the employee in his or her employment, e.g. not giving them their legal entitlements.
Altering the position of the employee to the employee’s disadvantage.
Discriminating between the employee and other employees, i.e. treating them differently to others.
Threatening to do any of the above.
In relation to a prospective employee, adverse action includes:
Refusing to employ the prospective employee.
Discriminating against the prospective employee in the terms or conditions on which the employer offers to employ them.
Threatening to do any of the above.
Adverse Action does not include any action authorised by legislation, or if an employer stands an employee down for engaging in industrial action or where the employment contract permits it in the circumstances.
Do you know your responsibilities with discrimination?
Workplace discrimination is a very serious issues that needs to be managed appropriately. Effective policies can help prevent these issues and this FREE E-Guide covers the essentials that employers need to know.
Adverse action and discrimination
In terms of discrimination, it is unlawful for an employer to take adverse action against a person who is an employee, former employee or prospective employee because of certain attributes, i.e.. the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
Treating someone differently is not necessarily unlawful discrimination. Some different treatment such as general performance management may not be unlawful discrimination unless it is because of one or more protected employee attributes.
Penalties for unlawful discrimination
The Fair Work Act aims to protect against unfair treatment and unlawful discrimination by providing effective relief for persons who have been discriminated against, victimised, or adversely affected by unlawful behaviour.
Importantly, The Act permits Fair Work Inspectors to investigate allegations of unlawful discrimination in the workplace and to issue penalties for contraventions.
Under the Act, there are a number of remedies and penalties for adverse action on discriminatory grounds. Where the Federal Court of Australia determines that a person has been discriminated against, the court may make any order that it considers appropriate, including orders for injunctions, reinstatement and/or financial compensation.
Australia has other federal, (as well as state and territory anti-discrimination laws) that prohibit discrimination, harassment, victimisation and bullying in various circumstances, including in the workplace. These include the Sex Discrimination Act 1984 and the Disability Discrimination Act 1992.
In addition, employees suffering workplace discrimination can raise conciliate complaints with the Australian Human Rights Commission. The Commision will facilitate a conciliation process, which gives the employee and the employer the opportunity to talk about and resolve the issues before they are escalated to court proceedings.
Bullying, Harassment, And Workplace Conflict
Bullying and harassment does not necessarily constitute unlawful discrimination under The Fair Work Act unless the behaviour can be shown to be adversely linked to a ground or attribute listed above.
Forms of bullying or harassment which do not fall within the jurisdiction of The Fair Work Ombudsman are dealt with by the Fair Work Commission or through Workplace Health and Safety legislation. Read Employsure’s guide on bullying and harassment for more information.
It is recommended that an employer seek independent legal advice if any claim is lodged against them. Employsure can help you better understand how to take steps to prevent discriminatory practices in your business. Contact Employsure’s FREE 24/7 Advice Line today on 1300 651 415 to get all your questions answered.
Frequently Asked Questions
What is workplace discrimination in Australia?
Workplace Discrimination is when an employer takes adverse action against a prospective employee, employee or contractor because of a protected attribute.
What are some types of discrimination?
- Direct – treating one employee less favourably than another because of their age, gender, religion or belief, disability or sexual orientation.
- Indirect – imposing a requirement or practice that unnecessarily disadvantages a certain group, for example women.
- Victimisation – treating someone less favourably than others because they have complained about discrimination on the basis of age, gender, religion or belief, disability or sexual orientation.
Can an employee sue an employer for discrimination?
Yes. An employee can lodge a claim against an employer for discrimination.
What are three examples of actions that could be considered discrimination in a workplace?
- Not promoting someone into a position they are qualified for because they have a mental disability
- Not hiring an older person for a retail role because they do not fit the young ‘fresh’ image of the store.
- Paying someone less to do the same job as their counterparts because of their ethnic origins.
What is adverse action in the Fair Work Act?
All employees have protected rights at work. A number of the general protections provisions in the Fair Work Act aim to protect (prospective) employees from adverse action taken because of a particular proscribed reason or because of certain attributes.
Adverse action includes action taken by an employer which ‘injures the employee in their employment and can include loss of pay or not giving them their legal entitlements, demotion, dismissal, or any circumstances where the employee is treated differently (i.e. negatively) to the manner in which he or she is ordinarily treated because the employee has certain attributes or has, or exercises a workplace or protected right, or engages in industrial activity.
The general protections provisions protect employees where the adverse action has been taken to prevent an employee from exercising a workplace right, or because the employee has or has proposed to exercise a workplace or protected right, has certain attributes or engages in industrial activity.
How can employers prevent a successful claim?
It is recommended that employers understand the law and the potential of a claim being lodged, and that an employer can show clearly by means of a document trail that any adverse action taken was not unlawful.
How can discrimination in the workplace be prevented?
- Encourage employees to respect one another and their differences
- Educate all your employees as to what constitutes discrimination and their rights and responsibilities in the workplace
- Develop and implement workplace policies that:
- prohibit discrimination in the workplace, and
- provide a framework on how to respond to discrimination if it occurs, and
- offer complaint and resolution processes that deal with complaints promptly and in confidence
- Make sure all employees are across these workplace policies and processes
- Train managers and supervisors on how to respond to discrimination in the workplace and implement the policies and procedures. Make sure they are setting the right example.
- Ensure the policies and procedures are enforced consistently
- Review the policies and procedures regularly, identify any risk factors that may occur in terms of workforce changes and put measures in place to mitigate them and update policies if necessary.
