Employment Discrimination Law in Australia: Rights and Protections

What is discrimination in the workplace?

Unlawful discrimination occurs when an employee or job applicant is treated less favourably due to certain personal characteristics, such as their race, sex, age, disability, or sexual orientation. Discrimination can take many forms, including direct and indirect discrimination, harassment and bullying.

Direct discrimination happens when a person is treated less favourably than others because of a protected attribute. For example, if an employer refuses to hire someone based on their religious beliefs, this would constitute direct discrimination.

Indirect discrimination occurs when a workplace policy, practice, or rule appears neutral but disadvantages people with a particular protected attribute. For instance, requiring all employees to work rotating night shifts may indirectly discriminate against employees with family responsibilities, who are more likely to be women.

Harassment and bullying are other forms of unlawful discrimination that involve unwanted behaviour that offends, humiliates, or intimidates a person because of a protected attribute. Sexual harassment, which includes unwelcome sexual advances, requests for sexual favours, or other conduct of a sexual nature, is a common form of harassment in the workplace. Bullying may also be considered unlawful under occupational health and safety laws.

Protected attributes in the Fair Work Act 2009

The Fair Work Act 2009 prohibits discrimination against employees and prospective employees based on several protected attributes:

• Race: Includes colour, descent, national or ethnic origin, or immigrant status.
• Sex: Covers both biological sex and gender identity.
• Sexual orientation: Includes heterosexuality, homosexuality, and bisexuality.
• Age: Protects both younger and older workers from discrimination.
• Physical or mental disability: Includes temporary and permanent disabilities, and perceived disabilities.
• Marital status: Covers single, married, divorced, and de facto relationships.
• Family or carer's responsibilities: Includes responsibilities to care for children or other family members.
• Pregnancy: Protects employees from discrimination due to pregnancy or potential pregnancy.
• Religion: Covers religious beliefs, activities, and observances.
• Political opinion: Protects employees from discrimination based on their political views or affiliations.
• National extraction: Refers to a person's nationality or citizenship.
• Social origin: Includes a person's socio-economic background, social class, or caste.

In addition to the attributes protected under the Fair Work Act, the Australian Human Rights Commission Act adds a further protected attribute:

• Irrelevant criminal record (known as the inherent requirements exception): An employee's criminal history should not affect their employment opportunities if it has no bearing on their ability to perform the inherent requirements of the job

Employers must not take adverse action against employees or prospective employees because of these protected attributes. Doing so may result in legal consequences, including penalties and damages.

Adverse action

Adverse action is any action that negatively affects an employee's position or employment conditions. Examples of adverse action include:

• Dismissing an employee
• Treating an employee differently than others
• Demoting an employee to a lower position
• Refusing to hire a job applicant
• Reducing an employee's hours or shifts
• Offering a prospective employee less favourable terms and conditions compared to other employees

Taking adverse action against an employee because of a protected attribute is unlawful under the Fair Work Act 2009. Employers who engage in such conduct may face legal consequences, including penalties and damages.

Anti-discrimination laws in Australia

In addition to the protections provided by the Fair Work Act 2009, Australia has several federal discrimination laws that prohibit discrimination in various areas of public life, including employment, education, and the provision of goods and services. These laws are enforced by the Australian Human Rights Commission (AHRC) and aim to promote equality and fair treatment for all individuals.

Age Discrimination Act 2004

The Age Discrimination Act 2004 prohibits discrimination against individuals based on their age in employment, education, and other areas of public life. This law protects younger and older workers from being treated less favourably due to age. Employers must not discriminate against employees or job applicants because of their age unless age is a genuine occupational requirement.

Employers should ensure that their recruitment processes, employment policies, and workplace practices do not discriminate against individuals based on age. This includes avoiding age-based stereotypes or assumptions in job advertisements, interviews, and promotion decisions.

Disability Discrimination Act 1992

The Disability Discrimination Act 1992 prohibits discrimination against individuals with disabilities in employment, education, and other areas of public life. This law covers a wide range of disabilities, including physical, intellectual, sensory, and psychiatric disabilities. Employers must make reasonable adjustments to accommodate employees with disabilities unless doing so would cause unjustifiable hardship.

Employers should ensure that their workplace is accessible and inclusive for employees with disabilities. This may involve physical modifications to the workplace, providing assistive technology, or offering flexible working arrangements.

Racial Discrimination Act 1975

The Racial Discrimination Act 1975 prohibits discrimination against individuals based on race, colour, descent, national or ethnic origin, or immigrant status. This law applies to employment, education, and other areas of public life. Employers must not discriminate against employees or job applicants because of their race or cultural background.

Employers should foster a workplace culture that values diversity and inclusion, and take steps to prevent racial discrimination and harassment. This may include providing cultural awareness training for employees, establishing clear policies against racial discrimination, and promptly addressing any incidents of racism in the workplace.

Sex Discrimination Act 1984

The Sex Discrimination Act 1984 prohibits discrimination against individuals based on sex, sexual orientation, intersex status, gender identity, marital or relationship status, pregnancy, breastfeeding, or family responsibilities. This law applies to employment, education, and other areas of public life. Employers must not discriminate against employees or job applicants based on these attributes.

From December 2023, amendments to the Sex Discrimination Act have introduced a positive duty for employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment, and victimisation, as far as possible. This means that employers must proactively assess and address the risk factors for these behaviours in their workplace, rather than simply responding to complaints as they arise.

Employers should review their policies, procedures, and training programs to ensure compliance with the Sex Discrimination Act and the new positive duty obligations. This may involve conducting regular workplace assessments, implementing anonymous reporting software, and providing training on respectful workplace behaviour.

Australian Human Rights Commission Act 1986

The Australian Human Rights Commission Act 1986 establishes the AHRC as an independent statutory body responsible for promoting and protecting human rights in Australia. The AHRC can investigate complaints of discrimination and human rights breaches under federal anti-discrimination laws. The Act also prohibits discrimination based on an individual's criminal record, where the record is irrelevant to the job requirements.

Employers should be aware that the AHRC can investigate complaints of discrimination and human rights breaches in the workplace, and that they may be liable for the actions of their employees. Employers should take steps to prevent discrimination and harassment in the workplace and respond promptly and appropriately to complaints.

State and Territory anti-discrimination laws

In addition to federal anti-discrimination laws, each Australian state and territory has anti-discrimination legislation. These laws often cover additional attributes not protected under federal law and have different complaint-handling processes and remedies available.

While federal and state/territory laws generally overlap and prohibit the same types of discrimination, there are some differences. For example, the Victorian Equal Opportunity Act 2010 includes "employment activity" as a protected attribute, making it unlawful to discriminate against an employee for making a reasonable request about their employment entitlements. The Australian Capital Territory's Discrimination Act 1991 prohibits discrimination based on "profession, trade, occupation or calling," which is not covered under federal law.

Another key difference is how certain protected attributes are defined. For instance, the definition of "disability" may vary between jurisdictions, with some state laws providing broader coverage than the federal Disability Discrimination Act 1992. The South Australian Equal Opportunity Act 1984 includes "chosen gender" as a protected attribute, which is not explicitly covered under the federal Sex Discrimination Act 1984.

Complaint-handling processes and available remedies may also differ between state and federal laws. In some states, complaints of discrimination must first be lodged with the state anti-discrimination agency before proceeding to a tribunal or court. Under federal law, complaints are initially handled by the Australian Human Rights Commission, which attempts to resolve the matter through conciliation before the complaint can be taken to the Federal Court or Federal Circuit Court. The remedies available may also vary, with some state laws allowing for the imposition of fines or other penalties in addition to compensation orders.

Employers must be aware of both federal and state/territory anti-discrimination laws and ensure compliance with all applicable legislation. It is essential to understand the specific protected attributes, complaint-handling processes, and available remedies in each jurisdiction to prevent and address discrimination in the workplace.

Handling complaints of discrimination

Employers should have a clear and well-communicated process for handling complaints of discrimination in the workplace. This process should be outlined in the company's anti-discrimination policy and should be easily accessible to all employees.

When an employee makes a complaint of discrimination, the employer should take the following steps:

1. Acknowledge the complaint promptly and treat it seriously.
2. Investigate the complaint thoroughly and impartially, maintaining confidentiality to the extent possible.
3. Interview the complainant, the alleged perpetrator, and any witnesses, and gather relevant evidence.
4. Make a determination based on the evidence and take appropriate action, which may include disciplinary measures against the perpetrator if the complaint is substantiated.
5. Communicate the outcome of the investigation to the complainant and the alleged perpetrator.
6. Take steps to prevent future incidents of discrimination, such as providing training or updating policies.

Employers should also be aware of the time limits for lodging complaints with external agencies. Under federal law, complaints must generally be made to the Australian Human Rights Commission within 12 months of the alleged discrimination occurring. Time limits for state and territory agencies vary but are typically between 12 and 24 months.

If an employee is not satisfied with the outcome of an internal complaint process, they may choose to lodge a complaint with an external agency such as the Fair Work Ombudsman, the Australian Human Rights Commission, or their state or territory anti-discrimination agency. Employers should cooperate fully with any external investigations and provide all relevant information and evidence.

Vicarious liability and employer responsibilities

Vicarious liability means that employers can be held liable for the discriminatory actions of their employees or agents, even if the employer did not directly engage in the discriminatory behaviour. This means that an employer may be legally responsible for discrimination committed unless the employer can show that they took all reasonable steps to prevent the discrimination from occurring.

To avoid vicarious liability, employers must take proactive steps to prevent discrimination in the workplace. This includes:

• Developing and implementing a comprehensive anti-discrimination policy that clearly outlines the types of behaviour that are prohibited and the consequences for breaching the policy.
• Providing regular training to employees on their rights and responsibilities under anti-discrimination laws, and on how to identify and report discriminatory behaviour.
• Establishing a clear complaint-handling process and ensuring that all complaints are taken seriously and investigated promptly and impartially. Implementing an anonymous reporting tool, such as Elker, can detect discriminatory behaviour early and safeguard an organisation from costly litigation.
• Taking appropriate disciplinary action against employees who engage in discriminatory behaviour.
• Regularly surveying and gathering feedback from employees and taking proactive steps to address any issues that arise.
• Providing support and assistance to employees who experience discrimination, such as flexible work arrangements.

Employers should also be aware of their positive duty to eliminate discrimination, harassment, and victimisation under the Sex Discrimination Act 1984. This means that employers must take reasonable and proportionate measures to prevent these behaviours from occurring in the first place, rather than simply responding to complaints when they arise.

More information

Australian Human Rights Commission

Fair Work Ombudsman

For information on complaints in each state and territory, visit:

• ACT: ACT Human Rights Commission
• NSW: Anti-Discrimination Board of New South Wales
• NT: Northern Territory Anti-Discrimination Commission
• QLD: Anti-Discrimination Commission Queensland
• SA: Equal Opportunity Commission - South Australia
• TAS: Office of the Anti-Discrimination Commissioner - Tasmania
• VIC: Victorian Equal Opportunity and Human Rights Commission
• WA: Equal Opportunity Commission - Western Australia.

Summary

Elker's anonymous reporting platform is a powerful tool for organisations looking to proactively address discrimination and other workplace issues. By providing employees with a secure and confidential channel to report concerns, Elker helps organisations identify and resolve problems before they escalate.

With features like real-time analytics, customisable workflows, and third-party legal assistance, Elker is the comprehensive solution for managing workplace complaints and promoting a culture of respect and equality.

Book a demonstration today to see how Elker can help your organisation comply with anti-discrimination laws and create a safer, more inclusive workplace.