Welcome everyone to our webinar today on Ask an Employment Expert: Anti-Discrimination in the Workplace in 2026.
My name is James True. I am the Head of Enterprise Legal here at LegalVision.
Before we get started today, just a few quick housekeeping items.
Number one, you are going to receive a recording of these slides in your email afterwards. You can submit your questions throughout; there is a Q&A box there for you. I will be answering all of your questions today, and there are some which have been pre-submitted as well, which I will get to.
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Ensure your workplace is meeting its psychosocial legal obligations with this free guide, offering practical steps, legal insights, and effective risk management strategies.
I will now move into the main topic, discrimination law, and begin answering your questions.
I will start with some that were submitted in advance, along with providing an overview of the discrimination law landscape in Australia, as many of these questions relate to those foundational concepts.
In Australia, every state and territory has discrimination laws, usually contained within an Anti-Discrimination Act or Equal Opportunity Act.
At the federal level, there are specific laws addressing discrimination and harassment based on age, race, disability, and sex. These include the Age Discrimination Act, Racial Discrimination Act, Disability Discrimination Act, and Sex Discrimination Act.
There are very few material differences between state and federal laws. All prohibit discrimination in employment based on protected attributes such as age, race, religion, disability, and marital status, along with an increasingly broad list of additional attributes.
Beyond these laws, the Fair Work Act also regulates discrimination. It focuses on preventing “adverse action” against employees because of a protected attribute. This includes termination, demotion, or missing out on promotions.
Additionally, workplace health and safety laws require employers to eliminate or minimise risks to health and safety, including those arising from discrimination, which may be treated as psychosocial hazards.
A key concept in discrimination law is the distinction between direct and indirect discrimination.
Direct discrimination occurs when someone is treated less favourably because of a protected attribute. This is typically overt and intentional.
Indirect discrimination occurs where a neutral policy or condition disadvantages individuals with a protected attribute and is not reasonable in the circumstances.
For example, a blanket rule requiring attendance at early morning meetings may indirectly disadvantage employees with caring responsibilities.
Importantly, discrimination is not always unlawful. Employers may rely on defences, most commonly where a requirement is an inherent requirement of the role.
However, employers must also consider whether reasonable adjustments can be made to enable the employee to perform the role.
What is considered “reasonable” depends on the circumstances, including the size and resources of the business.
Moving to your questions:
What are the risks of discrimination when using AI?
The main risk arises when AI is used in recruitment or decision-making processes. AI systems may reflect inherent biases in their training data, leading to discriminatory outcomes.
There are also risks in automated rostering systems, which may disadvantage employees with specific needs or protected attributes.
Human oversight is essential when using AI in these contexts.
How should complaints be handled?
It is critical to have a clear complaint-handling mechanism built into workplace policies.
Employees should be able to raise concerns both informally and formally, and there must be processes in place to manage complaints fairly and without conflicts of interest.
Most issues can be resolved internally before escalating to litigation.
What if psychosocial hazards arise from customers?
Employers must still take reasonable steps to protect employees.
This may include refusing service to abusive customers, allowing employees to remove themselves from unsafe situations, or reallocating responsibilities.
Even where risks are outside the employer’s direct control, action must still be taken to minimise harm.
Should breaches of law be treated as grievances?
Yes. For internal purposes, such issues can still be handled under grievance procedures, even if they involve legal breaches.
Employees may still choose to escalate matters externally.
What remedies are available to employees?
Remedies depend on where the claim is brought.
They may include compensation for economic and non-economic loss, aggravated damages, and in some cases reinstatement.
Courts are increasingly awarding higher damages, reflecting evolving public expectations.
What is the positive duty under the Sex Discrimination Act?
Employers must take proactive steps to eliminate discrimination, harassment, and hostile work environments, even if no incident has occurred.
This includes implementing policies, training staff, conducting risk assessments, and maintaining effective reporting mechanisms.
Can employers require medical assessments?
Yes, where necessary to assess an employee’s ability to perform the role or ensure safety.
However, requests should focus on functional capacity rather than detailed medical information.
Can employers ask about medical conditions during recruitment?
Yes, but caution is required.
It is often preferable to ask whether the candidate can perform the inherent requirements of the role, rather than seeking detailed medical information, to reduce discrimination risk.
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