Many business owners claim their workplace is discrimination-free. However, unlawful workplace discrimination can occur without you realising it. In the context of the Fair Work Act 2009 (FWA), it occurs when you take ‘adverse action’ against a current or prospective employee because of a personal characteristic. Under some legislation, employers also have a duty to ensure that the workplace is free from discrimination and harassment. This means you can be liable for acts of discrimination in your workplace. To avoid this, this article explains discrimination and the proactive measures you should take to prevent it.
As an employer, understand your essential employment obligations with this free LegalVision factsheet.
What is Unlawful Discrimination?
On a federal level, unlawful workplace discrimination happens when you take ‘adverse action’ against a current or prospective employee because of their:
- race;
- colour;
- sex;
- sexual orientation;
- breastfeeding;
- gender identity;
- intersex status;
- age;
- physical or mental disability;
- marital status;
- family or carer’s responsibilities;
- pregnancy;
- religion;
- political opinion;
- national extraction; and
- social origin.
As an employer, you discriminate against another employee if you:
- treat an employee less favourably than other employees because of their personal characteristics; and
- require an employee to comply with specific rules or conditions that apply to everyone but are not reasonable for that employee as they have a disproportionate or unequal effect on the employee, and they do not or are not able to comply with it.
What is Adverse Action?
Although adverse action covers a range of workplace conduct, it can include:
- dismissing an employee;
- demoting or altering an employee’s position to their detriment;
- refusing to employ a prospective employee; or
- discriminating against an employee based on the terms in your offer of employment.
If you take any of the above actions for a discriminatory reason, you may be subject to penalties under the FWA. Currently, the maximum penalty for contravening workplace discrimination law is $66,600 per contravention for a corporation and $13,320 per contravention for an individual.
Continue reading this article below the formWhat is Not Workplace Discrimination?
The law states that, in some contexts, discrimination is legitimate and lawful. This includes any action that is:
- taken because of the inherent requirements of the particular position concerned; or
- if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, it is taken in good faith and with the intent of avoiding injury to a person’s religious susceptibilities.
If you treat a person differently, this does not necessarily mean that you have discriminated against them. If you take appropriate management action against an employee, this may not be considered discrimination. For example, placing a pregnant employee on performance management to develop their skills will likely not be discrimination.
In the workplace, what is generally not unlawful workplace discrimination includes:
- employee performance management for underperformance;
- feedback and advice on performance and behaviour; and
- action based on the inherent requirements of a position.
Ultimately, a court will only consider your actions adverse if they occur based on someone’s personal attributes. So, if the action happens on another basis, this might not be considered unlawful discrimination.
Who is Protected?
The FWA protects most workers against discrimination in the workplace, irrespective of their work status. This includes full-time, part-time and casual workers. Other employment statuses which the FWA protect includes:
- probationary employees;
- apprentices and trainees;
- contractors; and
- prospective employees.
The Fair Work Ombudsman can investigate an allegation if an employee believes they have been a victim of discrimination in the workplace. Consequently, the Fair Work Ombudsman can take you to court for contravening workplace discrimination law.
What Can Employees Do?
An employee who believes they have been unlawfully discriminated against in the workplace has a few options.
1. Make a Complaint to the Fair Work Ombudsman
Firstly, the employee can make a complaint to the Fair Work Ombudsman (FWO). Consequently, the FWO may:
- investigate allegations; and
- decide, for its own reasons, to initiate litigation against you.
While a complaint may achieve long-term changes, it may not result in compensation for the affected person.
2. File an Application With the Fair Work Commission
On the other hand, the employee may make an application to the Fair Work Commission. Here, the employee would claim the employer has taken adverse action against them in breach of the general protections under the FWA.
The employee must make the application within:
- six years from the date the incident occurred if, at the time of making the application, they were a prospective or existing employee and were not dismissed; or
- 21 days after dismissal if they made the application in connection with a dismissal.
The application to the FWC will lead to a conference facilitated by a FWC conciliator. The aim is to reach an agreement between the parties, resulting in a legally binding written settlement.
If no agreement is reached, the conciliator will issue a certificate to the parties confirming this. After that, the applicant has 14 days to:
- drop the matter;
- proceed to arbitration through the FWC (in limited circumstances); or
- make an application to the federal court.
Preventing Discrimination
Since you can be held legally responsible for discrimination in the workplace, you must take active measures and reasonable steps to prevent it from happening and take appropriate action whenever it occurs.
Keep Records
Most unlawful discrimination is fairly obvious and often avoided by thoughtful employers. However, the challenge comes when there are legitimate workplace reasons to take adverse action against an employee with a protected attribute. This context presents a higher exposure to the risk of a workplace discrimination claim when, for example, dismissing an employee because of their poor performance.
Hence, you must be able to demonstrate that the actions you took were not because of the employee’s protected attribute. For this reason, employers should keep written records of any such issues in a person’s employment, and put any decision-making in writing. If there is a claim, contemporaneous records can be helpful in demonstrating the genuine reason for the action taken.
Zero Tolerance Discrimination Policy
You should implement specific policies that support a zero-tolerance approach to discrimination in the workplace. Such policies should be in writing and communicated to all your employees.
A discrimination policy should:
- confirm that discrimination is unlawful under Federal, State and Territory legislation;
- set out your commitment to ensuring that all employees are responsible for maintaining a workplace free of discrimination and for reporting any such behaviour to you;
- set out how to report the discrimination to you; and
- explain whether the policy forms part of each employee’s terms and conditions of employment.
Investigate Allegations of Discrimination
Ultimately, a workplace policy is only effective when you enforce it. Therefore, if your employee reports an allegation of discrimination, you should take it seriously. This includes:
- identifying who was involved in the matter;
- conducting a thorough investigation; and
- deciding whether you need to take disciplinary action against the perpetrator.
Dealing with an allegation of discrimination in the workplace can be complex. For this reason, it would be wise to seek legal advice to ensure you do everything within your power to prevent and resolve instances of discrimination in the workplace.
Key Takeaways
Unlawful discrimination in the workplace occurs if you take ‘adverse action’ against a current or prospective employee based on their personal characteristic. Discrimination can, therefore, arise if you treat an employee less favourably or subject them to different conditions because of their race, sex, sexual orientation, gender, religion, age, physical capabilities, mental ability or pregnancy status. You should prevent discrimination in the workplace from occurring, which can include creating a zero-tolerance discrimination policy and investigating allegations of discrimination.
If you need help with your obligations in terms of discrimination in the workplace, our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.
Frequently Asked Questions
Generally, all workers are protected from unlawful discrimination regardless of whether you hired them full-time, part-time or casual.
Adverse action involves a range of activities in the workplace that, if you take for a discriminatory reason, can be unlawful. For example, treating an employee less favourably than others because of their gender is likely to be an adverse action.
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