Workplace Discrimination (General)

In accordance with Australian laws, it is deemed unlawful to engage in discrimination, defined as treating individuals unfairly compared to others, based on various characteristics. These may vary depending on region and encompass factors such as race, colour, sex, religious and political beliefs, age, disability, sexual orientation, caring responsibilities, intersex status, among others. Unlawful discrimination encompasses several categories:

Responsibilities of Carers

Discrimination against individuals due to their need to care for or support a child or immediate family member is unlawful.

Gender Discrimination

This occurs when individuals are unfairly treated or subjected to harassment based on their gender. Discrimination against pregnant women also falls under sex discrimination.

Racial Discrimination

Unlawful treatment or harassment based on race, colour, ethnic background, ethno-religious background, descent, or nationality constitutes racial discrimination.

Religious or Political Beliefs

Discrimination arises when individuals are treated unfairly or harassed due to their actual or presumed religious and/or political beliefs and activities, provided they do not contravene the law.

Age-Based Discrimination

This pertains to unfair treatment or harassment based on age, including perceptions of being too old, too young, or of a certain middle age. Mandatory retirement based on age is also unlawful.

Marital Status Discrimination

Treating individuals unfairly due to their specific marital status, whether single, married, or in a de facto relationship, is considered marital status discrimination.

Sexuality Discrimination

Unfair treatment or harassment based on sexuality, including homosexuality, lesbianism, transgenderism, or perceived sexual orientation, constitutes sexuality discrimination.

Disability Discrimination

Unlawful treatment or harassment due to an individual’s disability or perceived disability, past or present, also violates the law.

Discrimination by Association

Discrimination occurs when individuals are unfairly treated or harassed due to the attributes of their relatives, friends, or colleagues.

Direct & Indirect Discrimination

Legislation prohibits two types of discrimination: direct and indirect.

Direct Discrimination

This occurs when individuals are unfairly treated solely because they belong to a particular group or category. For instance, refusing to employ someone of Aboriginal or Torres Strait Islander descent constitutes direct discrimination.

Indirect Discrimination

Indirect discrimination arises when a business practice, policy, or procedure, ostensibly equal for everyone, disproportionately affects different groups based on sex, race, etc. For example, height requirements that unintentionally disadvantage certain groups may constitute indirect discrimination, provided it is unreasonable.

Indirect discrimination is generally deemed unlawful if it lacks justification. For instance, if a job genuinely requires a certain height for operational reasons, such as machinery operation, it may not be considered unlawful indirect discrimination.

Exemptions

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.

Legal Responsibility

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.

Eliminating Discrimination

A new approach termed “positive discrimination” has emerged, urging employers to undertake all reasonable measures to eradicate sex discrimination and sexual harassment within the workplace. Under this framework, employers may be deemed to have violated their obligations even in the absence of documented incidents of harassment or discrimination, if they fail to proactively address and prevent such occurrences.

Establishing a workplace ethos that unequivocally delineates acceptable and unacceptable conduct is pivotal in curbing workplace discrimination. The objective is to foster an environment where every individual is treated equitably and respectfully, where diversity is celebrated, and where it is acknowledged that every employee deserves to feel secure and comfortable in their work environment.

 

To aid employers in identifying and preventing instances of sexual harassment and sex discrimination, we have developed a complimentary audit and risk assessment tool. This tool can also be adapted for addressing other forms of unlawful harassment and discrimination, providing a comprehensive approach to fostering a fair and inclusive workplace environment.

How HR Connect can help

If you require assistance with dealing with disciplinary issues concerning staff, HR Connect can help. Our HR Advisors will be able to guide you through each step of the disciplinary process and we have template documents (e.g. direction to attend a disciplinary meeting, written warning, letter of termination, etc) available as part of our subscription packages.

 

 

About HR Connect

HR Connect is one of Australia’s leading providers of HR & workplace safety advice services, designed to help small business owners make confident and compliant business decisions.

 

Disclaimer

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 HR Connect for advice. The information in this summary is correct as of August 2021.

 

This knowledge base article will change over time, as Modern Award legislation relating to this Industry or Occupation is passed by the Fair Work Commission. Originally published on 21 September 2021 and last updated on 18 February 2022.

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