10 things you need to know about discrimination in the workplace
Discrimination in the workplace is one of the most common areas that people lodge formal discrimination complaints about. In Australia, there are prohibitions in relation to discrimination on the grounds of attributes such as age, race, sex, sexual orientation and disability. These prohibitions are contained in various pieces of Commonwealth legislation, including the Fair Work Act, as well as in state legislation such as the Anti-Discrimination Act. Given the complexity and volume of laws that govern discrimination in Australia, as an HR Manager or the person responsible for HR in your workplace - what are the top 10 things you should know in relation to discrimination in the employment context?
- Discrimination can be direct or indirect. Direct discrimination occurs when an employer discriminates against an employee because of a protected attribute such as their age, race, sex or disability. Indirect discrimination occurs when an employer imposes a condition or requirement that, on the face of it, appears to treat and affect everybody equally, but has the actual effect of disadvantaging a particular group because of a protected attribute. Therefore, you should consider whether any of your policies might be indirectly discriminatory.
- Employers can be held to be liable for the discriminatory conduct of one employee (such as a supervisor or manager) against another. Prevention is better than cure so seek legal advice and make sure that you put policies in place and provide training to ensure employees understand what discriminatory conduct is.
- Discrimination complaints can also be brought by potential employees who may have grounds to believe that they weren't offered employment because of something that was raised in the interview process, in relation to their race, age, ethnicity, religion or sex. For example, they may allege that they were not offered the role because they were told they "too old" or they were asked if they had "plans for kids." It is therefore important to ensure that potentially discriminatory questions are not included as part of the interview process.
- Discrimination does not need to be intended by the alleged perpetrator of the discriminatory conduct for there to be a breach of the relevant anti-discrimination legislation. Often unconscious discriminatory biases play out in the employment arena, and so long as the impact of the conduct is discriminatory, there can be found to be a breach, even if the alleged perpetrator honestly believed they weren't acting in a discriminatory manner.
- Discrimination complaints can be brought as stand-alone complaints before the Australian Human Rights Commission or the NSW Anti-Discrimination Board, or can form part of a general protections or adverse action claim before the Fair Work Commission. However, there are laws in place to prevent "double dipping" which occurs when a complainant lodges a claim in more than one jurisdiction, for the same complaint.
- The definitions in anti-discrimination legislation are general and wide, in order to capture a variety of potentially discriminatory acts. For example, the Sex Discrimination Act protects against - amongst other things - sexual harassment, sexual identity or gender, family responsibilities, and pregnancy or potential pregnancy. The definition of "disability" under the Disability Discrimination Act can include psychological as well as physical disabilities, in addition to previous or potential disabilities. If you're not sure whether something would be caught by the anti-discrimination laws, you should talk to your solicitor.
- Some types of discrimination such as "positive discrimination" or "affirmative action" or "special measures" could constitute a defence or exception to discrimination. There are also a variety of defences specific to certain types of discrimination. For example, it is a defence for disability discrimination if you can prove that providing reasonable adjustments for that particular disabled employee, would cause the employer unjustifiable hardship.
- If you want to impose a condition or requirement that may be discriminatory, you can ask the Australian Human Rights Commission for an exemption from the laws. Exemptions can be granted if certain requirements are met.
- Rude or offensive comments in the workplace aimed at a particular person or group of people and made on the basis of someone's race, age, ethnicity, religion, etc, can also be actionable under the vilification provisions in the anti-discrimination legislation. These types of rude or offensive comments, if repeated, could also potentially form part of a bullying claim. Again, you should ensure that you have policies in place that clearly establish what is acceptable behaviour in the workplace, and what is not.
- If the employer is a provider of goods and services, or an educational institution, prohibitions in relation to discrimination extend past your employees, and can also extend to users of your goods or services such as clients and customers, and in the case of education institutions, to students as well.
It's important to ensure that all employees and employers are aware of the different types of discrimination that can occur in the workplace. If you need advice in relation to discrimination laws, contact our Employment and Business Migration Team.
Lisa is currently a casual lecturer at Western Sydney University; teaching Anti-Discrimination Law.
For further information contact on discrimination in the workplace, please contact our Employment Law specialists in Parramatta and Norwest, Baulkham Hills:
Lisa Qiu, Lawyer
Phone: 61 2 9895 9207
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