Combating Discrimination in the Workplace: A Practical Guide

An inclusive and diverse workplace environment fosters creativity, innovation, and productivity. However, despite the benefits, discrimination persists in Australian workplaces. This blog post is your guide to understanding discrimination in the workplace, the legal framework protecting employees, and best practices for employers to tackle discrimination and promote a healthy and safe work environment.
Combating Discrimination in the Workplace: Australian workplace law and best practices

Key takeaways

  • Discrimination in the workplace is defined as treating individuals differently or unfavourably based on their protected characteristics.
  • Employers should develop and implement comprehensive anti-discrimination policies, handle complaints and investigations, and provide training and awareness initiatives to create a safe work environment for all employees.
  • Discrimination can have severe impacts on workplace health & safety; legal advice may be sought if discrimination occurs.

Defining discrimination in the workplace

Workplace discrimination happens when an individual faces unfair treatment or negative consequences due to attributes like race, gender, or age. While not all discrimination is necessarily unlawful discrimination, awareness of the legal framework, encompassing anti-discrimination laws and the Fair Work Act, helps maintain compliance.

Diversity Council Australia's (DCA) Racism at Work report (2022) provided some alarming insights into the reality of workplace discrimination. Out of 1,547 workers surveyed nationwide, less than a quarter believed their employers took immediate action against workplace racism. Furthermore, only 27% felt that their organisations were proactive in preventing discriminatory behaviour. These figures highlight the pressing need for more effective strategies to combat racism in the workplace.

Protected attributes

Protected characteristics refer to specific attributes that are legally safeguarded against discrimination. In Australia, the Fair Work Act shields employees from discrimination based on the employees:

  • race
  • colour
  • sex
  • sexual orientation
  • intersex status
  • gender identity
  • breastfeeding
  • age
  • physical or mental disability
  • marital status
  • family or carer’s responsibilities
  • pregnancy
  • religion
  • political opinion
  • national extraction
  • social origin

Employers found to be in violation of the Fair Work Act regarding the new protected attributes may face penalties imposed by a court, including fines of up to $82,500 per breach for a company and $18,780 for an individual.

Type of discrimination in the workplace

Direct and indirect discrimination are the two main types that can lead to situations where individuals are unlawfully discriminated against. The following portions will detail these discrimination types and their presence in the workplace.

Direct discrimination

Direct discrimination involves treating an individual detrimentally based on their protected characteristics, such as declining to employ someone because of their ethnicity. This type of discrimination can be identified when an employee is treated less favourably than other employees due to their protected characteristics. Examples of direct discrimination in the workplace include job refusal based on race, dismissal or shift reduction due to race, and denial of training opportunities, transfers, and promotions based on race.

Indirect discrimination

Indirect discrimination is defined as a situation where an employer enforces requirements or rules that may have an unintentional yet adverse effect on an individual due to their personal characteristics. Examples of indirect discrimination in the workplace may include a job advert that requires a certain number of years of experience, which may inadvertently exclude younger applicants or a company policy that prohibits employees from wearing religious attire, which may inadvertently restrict employees of specific religions.

Australian laws define indirect discrimination as a situation where a rule, requirement, or condition that applies to everyone can disadvantage individuals with specific protected attributes. Employers must consider such policies and practices to ensure a fair and inclusive work environment.

Anti-discrimination laws in Australia

In Australia, federal and state legislation protects individuals from workplace discrimination. Employers must understand and follow these laws to foster a fair and inclusive workplace.

Australia has several federal and territory anti-discrimination laws. These include:

  • Age Discrimination Act 2004
  • Disability Discrimination Act 1992
  • Racial Discrimination Act 1975
  • Sex Discrimination Act 1984
  • Australian Human Rights Commission Act 1986
  • Fair Work Act 2009

Sex Discrimination Act 1984

The Sex Discrimination Act 1984 is a pivotal federal law that aims to eliminate discrimination on the grounds of sex, gender identity, and sexual orientation across various areas, including employment. It explicitly outlaws direct discrimination, such as denying opportunities or unfair treatment due to an individual's sex, marital or parental status, or pregnancy. Additionally, the Act addresses family responsibilities, ensuring that both male and female employees are not subjected to discrimination based on these aspects.

Some examples of sex and gender discrimination in the Australian workplace prohibited by the Sex Discrimination Act include sexual harassment, sex-based harassment, discrimination based on gender identity, and discrimination based on sexual orientation.

Racial Discrimination Act 1975

The Racial Discrimination Act 1975 in Australia is a federal law that prohibits discrimination based on race, colour, descent, or national or ethnic origin. The primary components of the Act include:

  • Advocating equality before the law
  • Proscription of racial discrimination
  • Safeguarding against offensive behaviour based on race
  • Allowing access to places and facilities without discrimination

Examples of racial discrimination in the workplace include:

  • Job refusal based on race
  • Dismissal or shift reduction due to race
  • Denial of training opportunities, transfers, and promotions based on race
  • Unequal remuneration due to race

Disability Discrimination Act 1992

The Disability Discrimination Act 1992 in Australia is a law that seeks to prohibit discrimination against individuals with disabilities in various areas of life, including employment, education, and access to goods and services. The Act's primary components include prohibiting discrimination based on disability, the necessity for reasonable adjustments, and safeguarding against harassment and victimisation.

This law safeguards employees from unjust treatment due to their disability and promotes equality for people with disabilities at work.

Age Discrimination Act 2004

The Age Discrimination Act 2004 in Australia prohibits direct and indirect discrimination based on age. The Act aims to promote equality and eliminate discrimination in the following areas:

  • Employment
  • Education
  • Goods and services
  • Accommodation

This law addresses age discrimination and helps to ensure that people of all age groups are treated fairly and have equal opportunities in the workplace.

By addressing age discrimination, this law helps to ensure that people of all age groups are treated fairly and have equal opportunities in the workplace.

Fair Work Act 2009

The Fair Work Act 2009 shields employees from negative actions due to protected attributes, offering solutions for unlawful discrimination. This Act significantly contributes to fair and equitable treatment of employees in the workplace. The Fair Work Ombudsman evaluates claims of unlawful workplace discrimination and may take legal action against the employer.

If you suspect that you have been subjected to discrimination in your employment, you can seek assistance from the Fair Work Ombudsman by submitting an online enquiry or contacting them on 13 13 94.

Australian Human Rights Commission Act 1986

The Australian Human Rights Commission Act 1986 is a pivotal piece of legislation establishing the Australian Human Rights Commission (AHRC) and outlining its role and powers. The Act provides a framework for promoting and protecting human rights in Australia. It empowers the AHRC to investigate and resolve complaints of discrimination and human rights breaches against the Commonwealth and its agencies. The Commission is also mandated to conduct public inquiries, provide education and public awareness on human rights, and advise the government on legislative and policy developments.

Under the Australian Human Rights Commission Act 1986, individuals who believe they have been discriminated against can lodge a complaint with the AHRC. The Act covers discrimination in public life and promotes compliance with international human rights obligations. It also stipulates the process for handling complaints, which includes conciliation as a primary step. If a resolution is not achieved, the matter may be taken to the Federal Court or Federal Circuit Court for a legal determination. The Act plays an essential role in Australia's human rights landscape by providing a mechanism for individuals to seek redress for discrimination and promoting a culture of respect for human rights.

Anti-discrimination employer best practices

Employer responsibilities and best practices

Employers are responsible for preventing workplace discrimination by developing and implementing policies, handling complaints and investigations, and providing training and awareness programs. By taking these steps, employers can ensure a safe and inclusive work environment for all employees.

Comprehension and compliance with the legal structure, encompassing anti-discrimination laws and the Fair Work Act, are necessary for employers to build a fair and inclusive workplace. Proactivity and prevention of discrimination can help employers foster a work environment that encourages productivity and employee satisfaction.

Developing and implementing policies

Creating and enforcing anti-discrimination policies is crucial for employers to maintain a safe and inclusive work environment. An effective anti-discrimination policy should include:

  • A clear statement of commitment
  • Identification of prohibited grounds of discrimination
  • Definition of discrimination
  • A reporting mechanism
  • An investigation process
  • Consequences for violations
  • Implementation of training and education
  • Regular review and updating

To ensure compliance with Australian discrimination laws, employers should:

  • Familiarise themselves with the Australian Human Rights Commission Act 1986 (Cth) and other relevant legislation
  • Seek legal advice or consult with experts in employment law
  • Develop and implement comprehensive anti-discrimination policies

By following these steps, employers can effectively address and prevent discrimination in the workplace.

Handling complaints and investigations

Handling complaints and investigations related to workplace discrimination is a crucial responsibility of employers. Employers should take complaints seriously, address them promptly, and maintain confidentiality throughout the investigation process. This approach enables employers to create a safe and inclusive work environment for all employees.

  1. To ensure fairness in discrimination investigations, employers should:
  2. Undertake a comprehensive and unbiased investigation
  3. Afford procedural fairness
  4. Preserve confidentiality
  5. Adhere to legal stipulations
  6. Record the investigation process

Adopting these best practices allows employers to effectively address and resolve discrimination complaints, promoting a positive work environment and employee satisfaction.

Training and awareness

Training and awareness programs play a vital role in preventing workplace discrimination. By educating employees about their rights and responsibilities, as well as helping them recognise and prevent discrimination, employers can promote a safe and inclusive work environment.

An efficient anti-discrimination training program should include:

  • Distinct learning objectives
  • Engaging content that addresses unconscious bias and social responsibility
  • Coverage of various diversity issues, such as racism, sexism, sexual orientation, and cultural awareness

Regular training and open discussions about discrimination can help employers develop a supportive work atmosphere where all employees feel valued and respected.

Employee rights and actions

Employees can report discrimination and seek legal advice if they believe they have been mistreated. Employees need to understand their rights and the legal framework that protects them from discrimination in the workplace.

Awareness of the legal structure, including anti-discrimination laws and the Fair Work Act, can help employees comprehend their rights and take suitable action if they face discrimination. In the following sections, we will discuss the steps employees can take to report discrimination and seek legal advice.

Reporting discrimination

Reporting discrimination involves first addressing the issue through an anonymous workplace reporting tool, if available. Organisations should provide these tools to empower employees to speak up about issues such as harassment and discrimination. An anonymous reporting tool allows for the discreet disclosure of sensitive information, which is crucial in fostering safer and more inclusive workplaces.

If reporting through internal channels does not lead to a satisfactory resolution, an employee may then seek out advice from external organisations such as the Australian Human Rights Commission or the Fair Work Ombudsman for assistance and advice about their rights. By reporting discrimination, employees can help create a safer and more inclusive work environment for themselves and their colleagues.

Seeking legal advice

Employees who believe they have experienced discrimination may seek legal advice from an employment lawyer or contact the Fair Work Ombudsman for assistance. Seeking legal advice can help employees comprehend their rights and the legal structure that shields them from workplace discrimination.

Legal advice can help employees determine the best course of action to address and resolve the discrimination they have experienced.

The impact of discrimination on workplace health and safety

In conclusion, combating workplace discrimination is essential for promoting a safe, inclusive, and healthy work environment. Employers can foster a positive work atmosphere that benefits all employees by understanding and complying with the legal framework, developing and implementing effective anti-discrimination policies, handling complaints and investigations, and providing training and awareness programs. Employees also play a crucial role in reporting discrimination and seeking legal advice when necessary. Together, employers and employees can work towards a discrimination-free workplace that fosters productivity, employee satisfaction, and overall well-being.

Summary

Combating workplace discrimination is essential for promoting a safe, inclusive, and healthy work environment. By understanding and complying with the legal framework, developing and implementing effective anti-discrimination policies, handling complaints and investigations, and providing training and awareness programs, employers can foster a positive work atmosphere that benefits all employees. 

Whistleblowing software like Elker is critical in the early detection of workplace issues and for compliance with the positive duty in the Sex Discrimination Act. Employers must now work to eliminate sexual harassment and discrimination on the ground of sex from the workplace.

If you'd like to find out how Elker can help your organisation reach compliance, book a demo of the platform today.

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