Some employees may experience discrimination at work and may just put up with it or resign from their position. Discrimination typically occurs when a person or a group of people are treated less favourably than another person or group. Some factors that may influence discrimination are race, ethnicity, gender, sexual orientation, age, religion, or disability. Broadly, there are three types of workplace discrimination. These are:
1. Direct Discrimination – This is the most obvious and straightforward way of discriminating against someone. It often involves treating someone differently because of a personal bias or prejudice. For instance, bullying an employee because he is homosexual.
2. Indirect Discrimination – This occurs when a seemingly neutral policy or practice disadvantages a particular group of people. This type of discrimination is not necessarily intentional and can be more subtle, but it can still result in unequal treatment.
3. Victimisation – This occurs when victims of discrimination are treated unfavourably because they complained about being discriminated against in the workplace. For instance, an employee complained about workplace sexual harassment. However, the employer ignored this complaint and discriminated the complainant.
These discrimination types can result in legal consequences, regardless of the type. Employers should be aware of all forms of discrimination and make sure their policies and practices do not result in unequal treatment between employees. This article will talk about discrimination at work in Australia.
Discriminatory Factors According to the Law
The Racial Discrimination Act 1975 is an Australian federal law that makes racial discrimination illegal in certain circumstances. The act makes discriminatory practices illegal against someone on the basis of their:
- National or ethnic origin
- Immigrant status in areas such as employment, accommodation, education, access to goods and services, and the administration of Commonwealth laws and programs.
The Sex Discrimination Act 1984 also provides grounds that make discrimination illegal at work. According to the Sex Discrimination Act, these grounds are:
- Pregnancy and breastfeeding
- Sexual activity
- Domestic or marital status
- Transgender status
- Gender identity
- Family, and caregiver’s responsibility
The Disability Discrimination Act 1992 prohibits employers from discriminating against disabled employees. The Disability Discrimination Act prevents employers from treating disabled employees less favourably than they would someone without a disability in similar circumstances. The following are penalties for unlawful discrimination:
- $16,500 per contravention for an individual
- $82,500 per contravention for a company.
The Australian Human Rights Commission Act 1986 is a federal law in Australia that establishes the Australian Human Rights Commission (AHRC). The Act sets out the powers, functions, and responsibilities of the AHRC and its role in promoting and protecting human rights in Australia. The AHRC is an independent statutory body that has a broad mandate to promote and protect human rights and eliminate discrimination. The AHRC has a range of functions, including:
- Investigating complaints of discrimination and human rights abuses
- Conducting research and providing education and training on human rights issues
- Providing advice and support to individuals and organisations on human rights issues
- Representing the interests of the Australian community on human rights issues to government and other stakeholders
- Developing and promoting human rights standards and guidelines for the protection of human rights in Australia
Workplace Discrimination Example
Let’s use an example for disability discrimination at work. Alex is a leg amputee that works for a construction company as an administrative officer. However, the employer suddenly decided to add more responsibilities for Alex. Alex was given the responsibility of carrying construction materials for a big project.
Obviously, Alex cannot do this since he is disabled and will be unable to perform the task. His employer must now make reasonable adjustments to allow Alex to perform the inherent requirements of their job. In this instance, Alex’s employer may remove the responsibility and hire a new person to carry the needed construction materials.
What does the Fair Work Act Say About Adverse Action?
Adverse action in employment law refers to any action that is harmful or disadvantageous to an employee or prospective employee. In fact, the Fair Work Act 2009 also prohibits employers from taking adverse action against employees because of discriminatory factors. This includes:
- Termination of employment;
- Reduction of pay or hours;
- Denying promotion or training opportunities; or
- Any other action that affects the terms and conditions of an employee’s work
Adverse action for prospective employees include:
- Refusing to employ prospective employees
- Discriminating against prospective employees in the terms and conditions under which they are hired
- Threats on using the above factors
It is important to note that treating employees differently is not necessarily unlawful discrimination at work. Employers may still criticise an employee’s performance without attacking them personally or using discriminatory factors. Let’s use Alex again as an example. For instance, Alex is slacking off at work and the boss caught him playing games on his cellphone during work hours. Alex’s employer then criticised him for not focusing on work when needed.
What is Anti-Discrimination NSW?
Anti-Discrimination NSW is a government agency in the state of New South Wales that is responsible for enforcing anti-discrimination and equal opportunity laws. The agency provides information and advice on discrimination, harassment, and vilification. Vilification is the act of making statements or writing about someone/something in order to cause people to have a bad opinion of them/it.
They then investigate discrimination complaints to check if these actions are committed in areas such as employment, education, and the provision of goods and services. Anti-Discrimination NSW works to promote equality and prevent discrimination. They educate the public and provide training to organisations on how to comply with state and territory anti discrimination laws.
The agency also provides conciliation services to help resolve disputes and can take legal action on behalf of discriminated individuals. Employees who experienced discrimination at work may file their complaint within one year of the alleged violation. The President of this agency may accept or reject a discrimination claim if the claim is filed too late.
The ADB will transfer the matter to the New South Wales Civil and Administrative Tribunal (NCAT) for a formal hearing if a conciliation is impossible. Alternatively, people can make a human rights claim in the Federal Court or Federal Circuit Court.
Importance of Seeking Legal Advice
People who have faced workplace discrimination should consider seeking legal counsel. Discrimination in the workplace is a serious problem that can have long-term consequences for a person’s career and financial stability. Moreover, discrimination at work can destroy a person’s self esteem, self-worth, and the ability to work effectively.
JB Solicitors is a law firm in Australia that can aid discriminated employees. Our lawyers can advise on the likely outcome of a case and the best strategy for resolving a legal matter in a workplace. Our workplace mediation services can help people settle legal matters out of court effectively. Should legal matters arise, we can help protect the rights and best interests of discriminated employees.
Contact us today for all your employment law matters.