Protected Attributes Under the Fair Work Act: Changes to Anti-Discrimination Laws

Key takeaways

From 7 December 2022, the Fair Work Act protects employees from discrimination based on breastfeeding, gender identity and intersex status.

Employers must take proactive steps to create an inclusive workplace environment by implementing anti-discrimination policies, providing assistance and reporting options for employees experiencing discrimination, understanding the potential penalties for non-compliance and fostering a culture of diversity and inclusion.

Staff training, open communication channels and anonymous reporting tools should be implemented to ensure a safe work environment that embraces all individuals regardless of their protected attributes.

The three new protected attributes under the Fair Work Act

The Fair Work Act now encompasses three additional protected attributes: breastfeeding, gender identity, and intersex status. These new attributes complement the existing protections under federal discrimination laws to ensure individuals are treated fairly, regardless of their protected characteristics or associations.

• Gender identity: Under the Fair Work Act, gender identity is defined as one's gender-related identity, mannerisms, or appearance, irrespective of the gender they were born with. This protected attribute ensures that individuals are safeguarded from discrimination based on gender identity, enabling them to work in a supportive and inclusive environment. Discrimination based on gender identity can range from overt actions, such as harassment or exclusion, to more subtle forms of discrimination, like refusing to use an individual's preferred pronouns.
• Intersex status: Intersex status refers to the presence of physical, hormonal, or genetic features that are neither wholly female nor wholly male, or a combination of female and male, or neither female nor male. Direct intersex status discrimination occurs when an individual is treated less favourably than others in a similar situation because of their intersex traits. Indirect intersex status discrimination happens when a seemingly neutral policy or requirement puts intersex people at a disadvantage.
• Breastfeeding: Employers must make reasonable accommodations for employees who breastfeed, which includes offering suitable facilities and scheduling breaks for breastfeeding or expressing milk. Neglecting these accommodations could be seen as discriminatory and a violation of work health and safety regulations. Other instances of breastfeeding discrimination may involve making unsuitable jokes or remarks about an employee's choice to breastfeed or express milk during work hours. Employers need to acknowledge and rectify any instances of breastfeeding discrimination to cultivate a positive workplace culture and adhere to federal anti-discrimination laws.

To prevent discrimination against individuals with protected attributes, employers should implement clear policies and procedures, provide education and training, and foster a culture of diversity and inclusion. An anonymous reporting system, or whistleblowing hotline, can play a significant role in safeguarding employees. These systems provide a layer of safety and confidence by ensuring individuals can voice their concerns without revealing their identity.

Anti-discrimination legislation in Australia

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

Visit our main article, Discrimination In the Workplace, where we discuss the specifics of these laws.

The 16 protected attributes under the Fair Work Act

The Fair Work Act 2009 safeguards employees from discrimination based on:

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

These protections ensure that all individuals have the right to fair treatment and equality in the workplace, regardless of their certain personal characteristics or associations.

Race

Racial discrimination is when a person is treated less favourably or not given the same opportunities as others in a similar situation because of their race, colour, descent, national origin, or ethnic origin. Examples of racial discrimination in employment could include indirect discrimination, such as insisting that all employees speak English at all times, even during breaks, which may disadvantage those for whom English is not their first language. It could also manifest in more direct discrimination, such as employing someone from a particular racial group due to stereotypes or subjecting employees to negative comments about their ethnicity, leading to unfair treatment in the workplace based on race.

Furthermore, employers can also be held legally responsible for discrimination or harassment by their employees. Such accountability is critical in ensuring that all individuals are treated equitably and with respect in the workplace, irrespective of their racial background.

Colour

Colour discrimination occurs when an employee or prospective employee is treated unfavourably or subjected to adverse action due to skin colour. This form of discrimination on the basis of colour is prohibited under the Fair Work Act, which ensures that employees are protected from discrimination based on colour and that employers are held accountable for any such actions.

Sex

Sex discrimination in the Fair Work Act 2009 in Australia is defined as treating someone less favourably than a person of the opposite sex would be treated in the same or similar circumstances. Concrete examples of sex discrimination include:

• Refusing to hire a woman because the employer assumes she won't fit into a traditionally male-dominated workplace.
• Paying a woman less than a man for performing the same job despite having similar skills, experience, and qualifications.
• Providing different career development opportunities to men and women, such as favouring men for leadership roles or advanced training programs.
• Setting inconsistent dress codes for men and women in a workplace setting which may unfairly disadvantage one sex over the other.

Employers have a legal obligation not to discriminate against employees based on sex and must take all reasonable steps to prevent sex discrimination and sexual harassment. Violators can be held legally responsible for sex discrimination or sexual harassment by their employees, with penalties imposed for breaches of the Fair Work Act.

Sexual orientation

Sexual orientation discrimination occurs when an employee or prospective employee is treated unfavourably or subjected to adverse action due to their sexual orientation. Examples of how this discrimination may manifest include refusing to hire someone based on their sexual preference, denying training or promotion opportunities because of their sexual orientation, or creating a hostile work environment through harassment or inappropriate jokes.

Age

Age discrimination encompasses any situation where an employee or job applicant receives less favourable treatment, specifically because of their age. This can manifest in various forms, including biases in hiring, promotion, job assignments, termination, and compensation, as well as harassment and age-based derogatory remarks. Such discriminatory practices are unethical and illegal under the Age Discrimination Act, which works in tandem with the Fair Work Act to safeguard employees and impose penalties on employers who allow or engage in ageist behaviours.

Physical or mental disability

Disability discrimination occurs when an employee or prospective employee is treated unfavourably or subjected to adverse action due to physical or mental disability. This form of discrimination is prohibited under the Disability Discrimination Act, which, along with the Fair Work Act, provides legal protections for employees and penalties for employers who engage in such conduct. Employers must also make reasonable adjustments to accommodate employees with disabilities, such as providing assistive technology or modifying work hours. It is important to note that a person with a disability may still be able to perform certain jobs effectively with reasonable accommodations in place, ensuring that they have equal opportunities in the workforce.

Marital status

Marital status discrimination refers to the prejudicial treatment an employee or prospective employee faces due to their current marital situation, whether they are single, married, divorced, or in a de facto relationship. This unfair treatment can manifest in various ways, such as being overlooked for promotions, receiving unequal pay, or being excluded from training opportunities solely based on their marital status. The Fair Work Act explicitly prohibits such discrimination, mandating legal protections for employees and establishing penalties for employers who exhibit conduct that disadvantages an individual because of their marital or relationship status.

Family or carer's responsibilities

Discrimination based on family or carer's responsibilities in the Fair Work Act 2009 involves treating employees adversely because they have responsibilities related to caring for dependents or family members. Examples of this type of discrimination include scenarios such as:

• Refusing to hire a single mother because the employer assumes she will miss too many days of work to care for her child.
• Demoting an employee who takes extended leave to care for an aging parent without considering alternative options, such as remote work or reduced hours.

Pregnancy/return to work discrimination

Pregnancy or return to work discrimination includes a range of unfair treatments targeting employees or job applicants due to pregnancy. This can manifest as differential treatment, workplace harassment, or exclusion from certain activities. It also involves inadequate communication about maternity leave entitlements, which is a legal right, and expectations to undertake tasks that may not be safe during or shortly after pregnancy, like heavy lifting. The pressure some employees feel to hide their pregnancy to avoid potential career setbacks is a sign that a workplace must improve its culture and policies.

Religion

Religious discrimination is where individuals are unfairly treated or subjected to negative consequences because of their religious beliefs, practices, or affiliations. Specific forms of religious discrimination can include but are not limited to being denied promotions, receiving disparaging remarks about one's faith, being excluded from company events, or being forced to participate in activities that conflict with one's religious observances. Additionally, it may manifest in less overt ways, such as scheduling important meetings during religious holidays without considering the availability of employees who observe those days or a lack of policy accommodations for religious dress codes and grooming practices.

To combat unlawful discrimination, employers are expected to proactively create an inclusive workplace culture that respects and values the diversity of religious expressions. This includes providing reasonable accommodations for religious practices, such as prayer breaks or allowing for religious attire, and ensuring that all employees feel their beliefs are respected and valued as part of the company's commitment to diversity and inclusion.

Political opinion

Under the Fair Work Act 2009 in Australia, it is unlawful for employers to discriminate against employees or candidates based on their political opinions. Political opinion encompasses a range of beliefs, including but not limited to affiliation with a political party, expressing political or socio-political viewpoints, moral stances, or active civic engagement.

Discrimination on the grounds of political opinion can manifest in various ways, such as choosing not to hire an individual due to their political affiliations or terminating an employee for expressing political beliefs that conflict with the employer's views. Employers are barred from taking adverse actions against employees solely based on their political stances. However, this protection does not extend to situations where an employee expressing political opinions violates the company's policies, such as engaging in harassment or discriminatory behaviour towards colleagues.

National extraction

National extraction refers to a person's national or ethnic origin. Discrimination on this ground could include refusing to hire someone because of their ethnicity or ancestry or treating an employee unfairly because of their national extraction. For example, an employer may refuse to promote an employee because of their ethnicity or make derogatory comments about their ancestry. It is important to note that a one-off incident can constitute discrimination.

Social origin

Discrimination on the ground of social origin, as outlined in the Fair Work Act 2009 in Australia, involves treating an employee or potential employee unfairly because of their social class, socio-occupational category, or caste. This includes practices where an employer might withhold promotions, engage in derogatory commentary about an employee's background, or exhibit any form of unfair treatment rooted in caste distinctions. The Act explicitly prohibits the termination of an employee's position based on social origin.

Compliance with new laws

To ensure compliance, employers should:

• Keep updated on the new laws regarding protections for breastfeeding, gender identity, and intersex status
• Maintain a diverse and inclusive workplace
• Update internal policies
• Provide assistance and reporting options for employees experiencing discrimination
• Be aware of potential penalties for contraventions of the law.

Updating internal policies

Employers should review and revise their internal policies to incorporate the new protected attributes into their anti-discrimination policies, ensuring that all employees know their rights and responsibilities under the updated Fair Work Act. This includes updating policies regarding breastfeeding accommodations, gender identity protections, and intersex status safeguards to promote an inclusive workplace.

Seeking assistance and reporting discrimination

Employees who experience discrimination based on the protected attributes should address discrimination concerns through an organisation's internal anonymous reporting system if they feel safe to do so. They may also seek assistance from the Australian Human Rights Commission or the Fair Work Ombudsman, who are responsible for ensuring compliance with the Fair Work Act and addressing complaints under the Commonwealth anti-discrimination laws.

For employers, establishing transparent and safe reporting procedures can mean the difference between employees feeling comfortable addressing discrimination internally and the potential escalation to external authorities. By creating clear, accessible channels for reporting, employees are assured of a confidential and secure process for voicing their concerns. This not only empowers individuals to speak up without fear of retribution but also positions the company to address and rectify issues of discrimination proactively. Such preemptive measures can prevent the need for intervention by larger governing bodies, which might involve formal investigations and potential legal consequences.

Penalties for contraventions

Employers found to violate the Fair Work Act 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.

Employers must stay informed about the new laws and take appropriate steps to ensure compliance with federal laws, promote an inclusive workplace, and avoid potential penalties for contraventions.

Best practices for fostering inclusive workplaces

To cultivate a workplace that values diversity and respects all employees, irrespective of their personal characteristics, employers should consider implementing best practices, such as:

• Diversity training: Diversity training is a significant factor in cultivating an inclusive work environment that values and respects all employees. By providing comprehensive training programs that address various aspects of diversity, including unconscious bias, cultural competency, and gender equality, employers can equip their workforce with the knowledge and skills necessary to promote a harmonious and inclusive workplace for everyone.
• Open communication channels: Establishing open communication channels and anonymous reporting options for employees is essential in fostering a safe and inclusive workplace environment. By providing multiple avenues for employees to voice their concerns and report incidents of discrimination without fear of retaliation, employers can promote transparency, accountability, and trust within the organisation, ultimately leading to a more inclusive and harmonious work environment.
• Anonymous reporting options for employees: Anonymous reporting tools are an essential mechanism for preventing discrimination in the workplace. These tools allow employees to report discrimination without revealing their identity, reducing the fear of retaliation and encouraging more open communication. Anonymous reporting can help employers identify and address issues promptly, fostering a safer and more inclusive work environment. By implementing such tools, employers can demonstrate their commitment to addressing discrimination and promoting equality within the workplace.
• Offering flexible work arrangements: Offering flexible work arrangements can significantly aid in cultivating an inclusive workplace that respects all employees' diverse needs and lifestyles. By allowing employees to work remotely, adjust their work hours, or engage in other flexible work options, employers can accommodate the unique needs of individuals with different protected attributes, ultimately promoting a more inclusive and supportive work environment for all.