Know Your Rights: Workplace Discrimination

What is workplace discrimination?

Workplace discrimination happens when you’re treated unfairly compared to other workers because of who you are or your personal characteristics.  It includes both direct, intentional actions and indirect, systemic practices that disadvantage specific groups.

This is unlawful– whether it happens during a job interview, while you’re working, or even when you’re being let go.

You’re protected from discrimination based on:

• Race – including your colour, nationality, social origin, ethnic background or immigrant status
• Sex, pregnancy or relationship status – including if you’re breastfeeding
• Family responsibilities – being a parent or carer
• Age– yes, even being young!
• Disability
• Religion
• Sexual orientation, gender identity and intersex status
• Political beliefs or union membership
• Family and domestic violence – new protection from December 2023

Important update for family and domestic violence

If you’re experiencing or have experienced family and domestic violence, you cannot be discriminated against because of it. You’re also entitled to 10 days paid family and domestic violence leave.

What does discrimination actually look like?

Discrimination at work can include the following actions when done because of someone’s protected characteristics:

• Hiring bias – not getting hired for a job or being hired under worse terms and conditions to other workers e.g. unequal pay
• Not getting hired for a job
• Being treated differently to your coworkers
• Bullying or harassment
• Someone else getting unfair advantages over you
• Your job duties being changed without good reason
• Being demoted or fired
• Not being given your legal entitlements  
• Denial of opportunities available to others 
• Workplace practices that disadvantage specific groups – e.g. rigid work hours or meeting times that exclude caregivers. 

Remember: Your boss can still give you performance feedback or take disciplinary action – but not because of your personal characteristics. You should be treated the same as any other employee in the same situation.

Types of discrimination

Direct discrimination

This is when someone directly treats you badly or less favourably because of who you are. 

Example: Requiring everyone to work late nights or rigid, inflexible hours might unfairly impact workers who have caring responsibilities. 

Indirect discrimination

This is when a workplace rule or requirement that applies to everyone unfairly disadvantages certain people and is not reasonable in the circumstances. 

Example: Requiring everyone to work late nights might unfairly impact workers who need to pick up siblings from school or have other caring responsibilities.

Are there exceptions?

Yes, but they’re limited:

Religious organisations

Churches, religious schools and other religious bodies may be allowed to discriminate on certain grounds e.g. sex, gender identity, marital or relationship status, pregnancy or sexual orientation. This may be done: 

• When it’s y necessary for religious activities (such as the appointment of priests, ministers or people performing religious duties) 

• Where an act or practice conforms to the beliefs of a religion or is necessary to avoid injury to the religious beliefs of people of that religion (e.g. religious schools may be allowed to discriminate against queer staff members or students). 

Inherent job requirements

Sometimes a job genuinely requires specific abilities or qualifications in order to perform the essential, core functions that are a necessary part of that job. It will likely not be discrimination if the person cannot fulfil the crucial functions of the job, such as safety, physical capability, or specific technical skills, even after reasonable adjustments are made.  For example, needing to be a certain height to be a flight attendant, or having a driver’s licence to be a delivery driver. 

Important: Employers must:

• Actually assess your ability to do the job
• Consider if they can make reasonable adjustments to help you do the job
• Not just assume you can’t do something

Health and safety

If doing a certain task would genuinely put your health at risk (for example, if you’re pregnant and the job involves heavy lifting), different treatment might be lawful.

However, this can sometimes be used unfairly against pregnant people and workers with disabilities, making it harder to find work.

Special measures (the good kind!)

These are programs or initiatives designed to level the playing field for groups who face ongoing discrimination – like women, First Nations people, or parents. Gender quotas are one example. 

Great news: Unions fought for and won the right to negotiate for special measures in workplace agreements!

What can you do about discrimination?

Workplace discrimination is serious, and there are real consequences for employers who do it.

Your options:

• Talk to your union – they can help you navigate the process and represent you
• File a complaint with:
  • Fair Work Commission
  • Australian Human Rights Commission
  • Your state’s equal opportunity or anti-discrimination commission

The right body depends on where you live and what type of discrimination you’re facing.

Need help?

Join your union – they’ll support you through complaints, provide advice, and fight for your rights at work. Union members have someone in their corner when things go wrong.

Remember: You deserve to be treated fairly at work, no matter who you are.

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