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Workplace Discrimination

Workplace discrimination occurs when a person, or a group of people, is treated less favourably than another person or group because of their background or particular personal characteristics. 

Commonwealth and state discrimination laws protect people from discrimination on the basis of their:

  • Race, including colour, national or ethnic origin or immigrant status
  • Sex, pregnancy or marital status and breastfeeding
  • Status as a parent or carer
  • Age
  • Disability
  • Sexual orientation, gender identity and intersex status
  • Political beliefs or industrial activity

In the workplace, being treated unfairly because of your race, age or other personal characteristics or attributes can mean a number of things. Some common examples include:

  • Choosing not to hire you
  • Treating you differently to other employees
  • Bullying or harassing you
  • Unfairly favouring someone else
  • Unfairly changing your role or responsibilities
  • Demoting or firing you

Discrimination can occur at any stage of employment – from the interview and hiring process, through to being fired. No matter when it occurs, discrimination is illegal.

Your employer can take some actions against you without being discriminatory. For example, performance management or disciplinary action. But if these actions happen because of a personal characteristic or attribute, it may be discrimination. Your employer should treat you the same as they would treat any other employee.

If you feel that your manager is treating you unfairly, your union can give you advice about what to do.

Direct and indirect discrimination

Discrimination can be both direct and indirect.

Direct discrimination occurs when someone choses to treat you unfairly because of one of the personal characteristics listed above.

This can often happen because an employer is prejudiced and believes that one of your personal characteristics or attributes will make you less suitable for the job. For example, choosing not to hire someone for a role because they are a woman.

Indirect discrimination occurs when your employer imposes rules or conditions that unfairly disadvantage you because of one of the personal traits listed above. For example, requiring everyone to work late in exchange for time off the following week may unfairly discriminate against anyone who has caring responsibilities like picking up kids from school. 

Exceptions 

There are some instances in which discrimination is reasonable. Sometimes it is even necessary to ensure that everyone is given equal opportunities and that a workplace is safe. Below is an explanation of these exceptions under discrimination law.

Religious institutions

Churches, religious schools and other institutions that are run in accordance with religious principles have certain exemptions from discrimination law. This means that unlike other institutions or employers, they may be able to discriminate against you because of your religion, sex, gender, marital status, sexuality or parental status if it is reasonably necessary for prescribed religious reasons.

In practice, exactly what counts as ‘reasonably necessary’ discrimination can be hard to determine. If you feel that you are being discriminated against by a religious institution, speak to your union about what to do. 

Inherent requirements

Inherent requirements are the essential duties of a job. In some circumstances, it is not unlawful to refuse to employ a person because of their age or disability, if they are unable to perform the inherent requirements of the job.

The inherent requirements will depend on what the job is. Examples include the ability to perform a job productively, to work effectively in a team or to work safely (see health and safety below).  

It should not be assumed that someone cannot meet the requirements of a job. Instead, people with disabilities or health conditions must be assessed on their current ability to do the job.  An employer must also consider if reasonable adjustments could be made to help a person with disabilities to do the job.  

Health and safety

If you are pregnant, have a disability or if there is another reason that performing a certain task would put your health and safety at risk, then it is treating you differently may not be prohibited. For example – if you are pregnant, an employer may choose not to hire you for a physically demanding job.

While this may sound simple, in practice it can mean that people with disabilities and pregnant women are treated unfairly which can often make finding a job in the first place a difficult task.

If you feel that you are treated unfairly, your union can give you advice about what to do.

Special measures

Treating people differently is sometimes necessary to make sure that everyone is being given equal opportunities. For example, some organisations use gender quotas to make sure that women are not being left out.

Treating people differently is also necessary in order to make sure that organisations can function appropriately. This is especially true when marginalised or vulnerable groups of people are involved.

For example, an organisation that provides counselling to Indigenous children may prefer to hire Indigenous councillors. 

What can I do if I’m being unlawfully discriminated against?

Workplace discrimination is a serious issue. There are a number of bodies that deal with workplace discrimination and employers found guilty can face serious consequences.

Where you live and what kind of discrimination you are experiencing will determine who is best suited to help you. If you feel that you are being discriminated against at work, contact your union for advice about how to handle the situation.

If discrimination cannot be resolved at the workplace level, you may be able to file a complaint with the Australian Human Rights Commission or your state equal opportunity, human rights, or anti-discrimination commission.  Your union can provide you with assistance and representation throughout this process.

Contact the Australian Unions Support Centre  if you need assistance connecting with a union.

Funding for this factsheet was provided by:

  • the Victorian Government as part of the uTech project; and
  • the Fair Work Ombudsman. 

Please note that the information given here is general information only and is not legal advice. For further assistance, it is recommended you speak to your union.

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