Unlawful Discrimination – some misconceptions about discrimination in employment

Stephen Booth

From time to time a client or a seminar attendee will ask me a question along the lines of "What’s the problem with discrimination? I discriminate in business all of the time, every time I make a choice or a decision. I need to do that to do what is best for the business."  

In one use of the word "discriminating", of course, this is true: good judgment – or "being discriminating" in that sense - is necessary when the choice is made to appoint one person over another as being the best person for the job, or decisions are made during the course of employment. However, the critical point is that the judgment should not be unlawful discrimination (a use of the word in a different sense) because of a person’s sex, ethnic background, or disability for example. 

What are the unlawful grounds for discrimination? 

The grounds on which it is unlawful to discriminate include: 

Unlawful discrimination can occur on the part of an employer, or on the part of other employees. For an employer, the issue might arise at the point of choosing whom to employ, or later on, deciding who gets particular benefits (eg salary increases) or access to services or facilities (eg training or promotion). For other employees, issues might arise about a person being excluded from activities or groups, or being badly treated (eg being abused or treated unfairly). A discrimination claim can arise when somebody is being treated differently or less favourably because of a characteristic listed above.  

What does this mean in practical terms? 

Discrimination law can be seen as a matter of legislated fairness.  

For instance if it is not practicable, and it cannot be practicable even with reasonable adjustments to the workplace, for a person to do a job, then it is not discriminatory to refuse that person’s job application for that reason. However, employers and managers must be conscious of the valid reasons for choosing one person over another, by putting aside any assumptions about the characteristics of the candidate and thinking clearly about the requirements of the job.  

How do these issues play out? 

In one of the leading cases on discrimination (Poniatowska v Employment Services Australi, 2010), Ms Poniatowska was subjected to sexual harassment by male colleagues (uninvited and unwelcome sexual propositions and text messages). When she complained to her employer, the employer treated her as the problem, and terminated her employment for allegedly poor performance. The employer did not attempt to address the issues she raised. It was found, on the evidence, that a complaint from a male employee would have been handled differently, and that the termination was really because of the complaint and not performance issues. The employer’s conduct was therefore discrimination against Ms Poniatowska (quite apart from its conduct in tolerating the harassment).

Another example of a discrimination claim, drawn from cases I have dealt with during my own practice as an employment lawyer, includes that of an employee of African background who claimed that he had been discriminated against because sales which should have been his had been allocated to other staff. He felt that that this was because of the colour of his skin. However, the evidence showed that the allocation of sales was conducted in accordance with normal processes, and some jobs were not allocated to him because of an injury that had limited his ability to deal with heavy stock. He may have had fewer sales, but it was not because of discriminatory decisions based on his ethnic background. The company would have done the same in the case of anyone with the same injury and physical limitations. 

So …

Being "discriminating" in the sense of making a considered choice between one person and another, based on relevant matters, is perfectly in order. What is not in order is making a decision based on irrelevant matters, as indicated by anti-discrimination legislation, in the list set out earlier. Doing so will result in unlawful discrimination.  

All businesses should have in place clear policies about discrimination, harassment, bullying and grievance handling. These policies lay the groundwork for managers and employees being conscious of the issues, and dealing with them well if a problem arises. Legal advice on policies and on potentially discriminatory situations is an important part of business and risk management. 

For more information on discrimination, please contact: 

Stephen Booth, Principal,
Phone: +61 2 9895 9222
Email: sbooth@colemangreig.com.au