What is workplace discrimination?

Workplace discrimination laws are set out in the Fair Work Act 2009, along with federal, state and territory anti-discrimination legislation.

Under the Fair Work Act 2009 workplace discrimination occurs when an employer takes adverse action against an employee or prospective employee because of a characteristic protected by law. Among others, characteristics under the Fair Work Act include:

  • race;
  • gender;
  • family or carer’s responsibilities;
  • sexual orientation;
  • age;
  • physical or mental disability;
  • religion; or
  • political opinion.

Adverse action includes, however is not limited to, demoting an employee, altering their position, refusing to employ a candidate, and of course, dismissal.

Discrimination risks for employers not only arise during recruitment and selection, but through the entire employee lifecycle. For example, when the business might be faced with a redundancy, the decisions associated with consideration of redeployment opportunities may expose the business to risk of discrimination claims.

What is the difference between direct and indirect discrimination?

Direct discrimination occurs where a person is treated less favourably because of a protected attribute, when compared with a person without the attribute in similar circumstances.

Indirect discrimination on the other hand, occurs when a condition or requirement is imposed that has the effect of disadvantaging a particular group and is unreasonable in the circumstances. This can take the form of a company policy or practice which may appear to treat all employees equally, however, disadvantages individuals with a particular characteristic. For example a policy that prohibits employees from working part-time has the effect of disadvantaging those with child care responsibilities which is unlawful under the Sex Discrimination Act 1984.

In addition to protections under the Fair Work Act, there are federal, state and territory anti-discrimination laws that prohibit both direct and indirect discrimination. As an employer, you have obligations under the following federal laws:

  • Age Discrimination Act 2004;
  • Australian Human Rights Commission Act 1986;
  • Disability Discrimination Act 1992;
  • Racial Discrimination Act 1975; and
  • Sex Discrimination Act 1984.

Employers must also be aware of the relevant state and territory anti-discrimination legislation which may list additional protected characteristics. For example, Tasmania and the Northern Territory have legislation that make it unlawful to discriminate against someone for a criminal record, whereas other states do not specifically make this unlawful.

Tips to minimise risk:

Decisions made by employers can often unintentionally result in unwanted reputational damage and liability to pay significant lump sum damages and fines. Not only that, employers can also be held legally responsible for acts of discrimination by their employees (or agents) within the workplace.

To minimise the risk of liability, employers must show they have taken all reasonable steps to prevent discrimination occurring in the workplace. At a minimum, such steps include:

  • The implementation of an appropriate anti-discrimination policy;
  • Upskilling and training employees in the policy, including the unlawfulness of discrimination and the consequences of breaching the policy;
  • Addressing anti-discrimination during inductions; and
  • Appropriately addressing an potential breaches of the anti-discrimination policy.

Understanding and managing discrimination in the workplace can present many challenges for employers. It is recommended that businesses seek professional advice and think twice before considering taking any action against an employee with a protected attribute.

For more information on workplace discrimination contact us today to speak with a workplace specialist.