Employment Discrimination in Australia
Employment discrimination occurs when an individual is treated unfairly in the workplace due to personal attributes such as race, sex, age, disability, or other protected attributes. Various federal and state laws, including the Fair Work Act 2009 (Cth), the Australian Human Rights Commission Act 1986 (Cth), and relevant state-based anti-discrimination laws, prohibit employment discrimination.
These legal frameworks are designed to ensure that all employees are protected in the workplace from discriminatory practices, that all employees have access to equal opportunities in the workplace and are treated with dignity and respect.
What constitutes Protected Attributes?
Workplace discrimination involves differential treatment or adverse action taken because of an employees’ personal attributes, such as:
Race, religion, national or ethnic origin
Employers must not discriminate against an individual based on their race or ethnicity. Protections afforded to individuals aim to address racial discrimination, particularly against immigrants, religious and racial minorities.
Sex, pregnancy, marital status & breastfeeding
Employers must not discriminate against an employee based on their sex. Protections also aim to ensure that female employees are not penalised or disadvantaged in the workplace due to their pregnancy or breastfeeding status.
Parental or carer status
Employees are protected from adverse action because of their parental or carer’s responsibilities.
Sexual orientation, gender identity and intersex status
An employer must not discriminate or treat an employee unfairly based on their gender identity or sexual orientation. This ensures that protections against discrimination on the basis of gender identity or sexual orientation extend to all employees, including LGBTQIA+ individuals.
Age
Employers must not discriminate against an employee or treat an employee unfairly based on their age. Age discrimination can affect both younger and older workers, especially during the recruitment process or when decisions are made about job positions, promotions or redundancies.
Disability
Employers must not discriminate against an employee based on any physical or mental disability.
Political beliefs or trade union activities
Employers cannot take adverse action against an employee because of their participation in lawful political activities or trade union involvement.
Family or domestic violence
Employers cannot take adverse action against an employee for being subjected to domestic violence.
What Constitutes Workplace Discrimination?
Workplace discrimination on the basis of the above-mentioned attributes can manifest in several ways:
Exclusion from hiring processes
Exclusion from the hiring process may include not being considered for a job due to a discriminatory reason. For example, this may occur where a job applicant from an ethnic or racial minority is overlooked or not considered for a role solely based on their national origin, which is unlawful.
Differential treatment
Differential treatment may occur where an employee receives less favourable terms or conditions of employment in comparison to other employees in a similar role. This may include wage discrimination, where female or older workers are paid less for the same work.
Harassment or bullying
Harassment or bullying occurs where an employee is subjected to offensive, intimidating, or humiliating behaviour for discriminatory reasons. Workplace sexual harassment and gender discrimination are common examples of such conduct.
Unfair job assignments
Unfair job assignments may include being assigned tasks or responsibilities that are less desirable without justification. Often, where such job tasks are assigned unfairly, this will be due to discriminatory reasons.
Demotion or termination
Losing a position or being dismissed due to a protected characteristic may amount to discrimination where such action is taken unfairly based on an employee’s race, gender, age, disability or sexual orientation.
These actions are considered unlawful under Australian discrimination laws and can lead to legal consequences for employers.
General Protections Under the Fair Work Act
The Fair Work Act 2009 (Cth) provides several general protections to employees, including the a protection from adverse action in response to an employees’ protected personal attribute or exercise of a protected workplace right. These protections apply to all employees under the national system and cover:
Workplace rights
Workplace rights include the right to join a union, to participate in lawful industrial action, to make a complaint or inquiry in relation to an employee’s employment and to engage in employment-related political or social activities.
What Is Adverse Action?
Adverse action refers to an unlawful action taken by an employer in response to an employee’s protected personal attribute or exercise of a workplace right. Adverse action can include:
- Dismissal;
- Demotion; and
- Harassment or bullying.
An employee impacted by such discriminatory behaviours may seek legal action, including but not limited to a General Protections Application in the Fair Work Commission, a complaint to the Australian Human Rights Commission, or a complaint to the Fair Work Ombudsman. Consequently, employers must ensure that any of the above actions against an employee, such as dismissal, are taken for lawful reasons.
What Is Not Considered Unlawful Discrimination?
Not all unfavourable treatment qualifies as discrimination. Unfavourable treatment of an employee for a valid reason will not be unlawful. Differential treatment alone is unlikely to prove discrimination unless such treatment is linked to a protected attribute. Examples of legitimate reasons for adverse treatment may include:
- Performance Issues: Fair and consistent management of underperformance is not unlawful, particularly where an employee has been notified of such issues and provided reasonable time for improvement;
- Business Decisions: Legitimate actions, such as restructuring or redundancy, are lawful if based on business needs and not due to a protected characteristic or discriminatory reason; and
- Inherent Requirements: If a person cannot perform the inherent requirements of a role, even with adjustments, choosing someone who can is not discriminatory.
Employer Responsibilities
Employers must take active steps to prevent and respond to claims of discrimination, such as:
The development of anti-discrimination policies
Workplace policies which create effective strategies for preventing discrimination in the workplace should be clearly communicated and enforced amongst employees.
Training & education
Regular workshops assist employees and employers in identifying discrimination in the workplace.
Complaint mechanisms
Employers must ensure they offer secure channels for reporting discrimination by employees.
Regular monitoring
Employers must monitor policies and practices to ensure all employees are treated equally, especially where affirmative action or empirical study indicates disparate treatment.
Employers in breach of these obligations may face legal and reputational consequences. As such, it is important that employers ensure compliance with anti-discrimination laws and respond to complaints raised by employees thoroughly and effectively.
Seeking Help and Remedies
It is important to seek legal advice if an employee believes they have been unlawfully discriminated against or if an employer is at risk of being deemed to have discriminated against an employee.
Legal avenues available to resolve issues of discrimination may include:
- Internal complaint resolution processes, informal discussions and/or mediation;
- General Protections Proceedings in the Fair Work Commission; and
- Proceedings in the Australian Human Rights Commission.
Having your own specialist employment law practitioner is advised to assist you in navigating these processes and to ensure you understand your legal rights and responsibilities, the legal framework for any complaint made, and also so your rights are upheld during a complaints or investigation process.
Further Information
Get in touch with our team if you are an employee, contractor or employer needing advice regarding employment discrimination.
