It is unlawful to discriminate against an employee in the workplace 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 or social origin (protected attributes).
It is unlawful for an employer to discriminate against an employee in the terms and conditions of employment offered to an employee including a prospective employee because of one of the protected attributes. An employer also discriminates against an employee when they subject them to some sort of detriment during their employment because of one of the protected attributes. This may include an employee being dismissed from their employment, being demoted or being rostered for less shifts than usual. It is also unlawful for an employer to refuse to employ someone, or to treat employees differently, because of one of these protected attributes.
An employer will not have discriminated against an employee if their action is not unlawful under federal or state anti-discrimination laws. An employer also will not have discriminated against an employee in some circumstances if the action they have against the employee is because the employee cannot fulfil the inherent requirements of their position because of the otherwise protected attribute. An employer may, however, be required to provide reasonable adjustments for the employee to be able to meet the inherent requirements of the position. An employer will not, however, be obliged to provide adjustments that impose an unjustifiable hardship on the employer.
What are 3 examples of discrimination?
Disability discrimination
An employee diagnosed with pneumonia and a serious heart condition, took some time off work to undergo some required surgery. Following the surgery, the employee contracted an infection and needed to an extended period away from work.
Prior to his return to work, the employee was told by his employer that they did not ‘have any work’ for him as a ‘result of economic circumstances and health related issues’. It was decided by a court that the employer had discriminated against the employee, and had terminated his employment because of his physical disability.
An employee told her employer that she was pregnant and proposed to take a period of maternity leave. Following this disclosure, the employer demanded she work unreasonable additional hours, refused to allow her to continue working in the role which she was employed, refused to consider her request to return to work on a part-time basis after her maternity leave, and engaged in abusive conduct towards her which was directly related to her refusal to work additional hours and her letter complaining of discrimination.
The employee resigned from her employment because of her employer’s behaviour. It was decided by a court that the employee was forced to resign due to the employer’s discriminatory actions towards her. The court found that the employer discriminated against her due to her pregnancy.
Religious discrimination
A Christian woman was employed by a Christian church of a different denomination. The employee was presented with a new employment contract and a revised job description which required her to have and ‘…active involvement in the life and worship of’ the employer’s choice. The court found that the employer reformulated the job description and employment contract to be framed around attendance of their church, which the applicant was not a member of. The court found that the employee was discriminated against based on her religion.
How many unlawful discriminations are there?
Unlawful discrimination claims can be made in several jurisdictions including claims made to the:
- Fair Work Commission or the federal courts under the Fair Work Act 2009 (Cth); and
- Australian Human Rights Commission or a comparable state body.
Which claim will be appropriate will depend on the individual circumstances of the alleged discrimination including who the employer is, when the discrimination occurred, and whether the requirement for reasonable adjustments played a key role in the discrimination. Reasonable adjustments are accommodations an employer may be obliged to make for an employee to be able to fulfil the inherent requirements of their position.
When does unlawful discrimination apply?
Unlawful discrimination may occur in various aspects of everyday life including in work, in education, in access to premises, in the provision of goods and services and in accommodation. Discrimination law also provides protection against acts of sexual harassment, racial hatred and racial harassment. Further, it is unlawful to victimise someone because they have made a complaint under discrimination laws.
Unlawful discrimination in the workplace occurs when an employer treats an employee, and in certain circumstances a prospective employee, differently because of a protected attribute. Unlawful discrimination includes an employer dismissing an employee, refusing to employ someone, and altering the terms and conditions of their employment or causing them some other detriment.
What should you do if you are being discriminated against?
If you believe you have been discriminated against in the workplace, you should seek legal advice to determine the nature of any claim available to you and the most appropriate course of action. This may include filing an application in the Fair Work Commission, Australian Human Rights Commission or an equivalent state body, or the Federal Circuit Court or Federal Court.
The usual first step in a discrimination claim is for the parties to participate in a mediated process with the assistance of the body to whom the claim has been made. Mediations, or conciliations as they are referred to in some jurisdictions, provide parties with an opportunity to seek resolution to their dispute without the need for costly court proceedings.
In a mediated process, parties essentially decide to set aside their differences and come to an agreement on a remedy between themselves. Although the process is facilitated by a mediator or conciliator, it is the parties who decide the outcome. No decision is made by a third party and no party is held to be liable. This process is confidential. The usual remedy is compensation; the amount of compensation possible will vary dependant on the circumstances of your claim. This is something a specialist employment or discrimination lawyer can provide you with advice on.
