Employers must prevent workplace discrimination, as it is unlawful under Federal, State and Territory legislation and the employer may be legally liable for acts of discrimination committed by its employees and agents in connection with the performance of their employment duties.
Employers must take active measures and reasonable steps to prevent workplace discrimination and must take appropriate action whenever it occurs.
A person discriminates against another person if the person:
- treats the other person less favourably than in the same circumstances, or in circumstances which are not materially different, the person treats or would treat another person because the other person belongs (or is thought to belong) to a particular group (i.e. direct workplace discrimination); or
- segregates the other person; or
- requires the other person to comply with a requirement or condition which is the same for everyone but is not reasonable for the other person having regard to the circumstances, as it has a disproportionate or unequal effect on the other person and the other person does not or is not able to comply with it (i.e. indirect workplace discrimination).
In the workplace, this can occur as a result of:
- employee recruitment;
- employment terms, conditions and benefits;
- transfer, promotion or dismissal of employees.
Workplace discrimination on any of the following grounds is unlawful:
- age (including requiring an employee to retire because of their age);
- carer’s responsibilities;
- disability (including physical, intellectual and psychiatric disability);
- marital status;
It is also generally unlawful to discriminate against a person because an associate or relative of theirs falls into one of the abovementioned categories.
What is not workplace discrimination?
If a person is treated differently, this does not necessarily mean that they have been discriminated against.
In the workplace, the following is generally not unlawful workplace discrimination:
- action that is permitted by law;
- employee performance management for underperformance;
- feedback and advice on performance and behaviour;
- action based on the inherent requirements of a position.
What should employers do to protect against discrimination?
As an employer can be held legally responsible for discrimination in the workplace, employers should have clear and unambiguous policies that deal with discrimination and other workplace issues. Such policies should be in writing. communicated to employees and accessible so that they can be made available if needed.
A discrimination policy should:
- set out an employer’s commitment to ensuring that all employees are responsible for maintaining a workplace free of discrimination and for reporting any such behaviour to the employer;
- set out how to report discrimination to the employer;
- explain whether the policy forms part of each employee’s terms and conditions of employment.
What do I do if I think I have been discriminated against in my employment?
If you have been discriminated against in your employment then you should:
- make a complaint to the Australian Human Rights Commission;
- make a complaint to the Fair Work Ombudsman;
- if you have not been dismissed from your employment and the provisions of the Fair Work Act 2009 that provide protections against unlawful discrimination have been contravened, then you can make an application to the Fair Work Commission.
The LegalVision team can help you with any workplace discrimination issues – whether you’re an employee or an employer – so just get in touch and speak with one of our experienced employment law specialists today.
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