Quick guide to discrimination law

Everybody has a right to access and use public places, such as shops, restaurants, office blocks, educational institutions, sporting venues, libraries and cinemas.

It is against the law for public places to be inaccessible to people with disabilities. This applies to existing places, as well as places under construction.

The Disability Discrimination Act requires organisations to make adjustments to their premises so that they are accessible to people with disabilities.

When thinking about accessibility, organisations should consider the many different types of disabilities that people may have, such as mobility impairments, vision impairments and hearing impairments.

Example: It could be unlawful discrimination if a person with a mobility impairment who uses a wheelchair could not enter a cinema because access to the cinema was only available by stairs.

In some circumstances it may be unreasonable to provide complete accessibility to a public building, particularly for existing buildings. The Disability Discrimination Act provides an exception if the cost or difficulties of providing access will place an ‘unjustifiable hardship’ on a person or organisation.

The Federal Government can provide financial assistance to modify workplaces so they are accessible to employees with disabilities. See http://jobaccess.gov.au

Some application processes may disadvantage certain people. This reduces an employer’s opportunity to find the best person for the job. It could also be discriminatory.

Employers are required to avoid discrimination on the basis of certain attributes, protected by law, when recruiting staff.

They can remove barriers for applicants by simplifying their application procedures and making sure that they are accessible.

Some useful strategies include:

• Not seeking unnecessary information
• Not seeking information that could be perceived as the basis of discrimination against the applicant
• Allowing an alternative application process for people who require it; for example, allowing applications to be made both online and in writing.

Example: Asking applicants to submit a comprehensive written statement on why they want the job might not be necessary for a cleaning position. It could also discourage people with limited English language skills from applying for the job.

Example: Using only an online portal for applications could deter applicants with certain forms of disabilities from applying, as they may have difficulty accessing the system or navigating through the application process.

Example: Asking applicants if they have children as part of the application process for a job in fashion retail. If an applicant says they have children, and the employer relies on this information in deciding not to offer them the job, the applicant could make a complaint of discrimination based on their family responsibilities. An employer should clearly set out the essential selection criteria for the position, and ask the applicant if they can meet these requirements, rather than making assumptions about the applicant’s child care arrangements.

It is against the law to discriminate against women who are breastfeeding. This includes women who need to express milk by hand or using a pump. There are some limited exemptions.

Discrimination happens when a woman is treated less favourably because she is breastfeeding or needs to breastfeed over a period of time. It is also discrimination when there is an unreasonable requirement or practice that is the same for everyone but disadvantages women who are breastfeeding.

Example: It would be discrimination if a cafe refused to serve a woman because she is breastfeeding.

Example: It may be discrimination if an employer does not allow staff to take short breaks at particular times during the day. This may disadvantage women who are breastfeeding, as they may need to take breaks to express milk.

Definition

Bullying can include verbal or physical abuse, such as yelling, screaming or offensive language. It can also include subtle psychological abuse, such as assigning employees impossible tasks, or deliberately changing work rosters to inconvenience an employee.

Legal Protection

Bullying may be unlawful under federal anti-discrimination laws where the bullying is linked to, or based on, a protected characteristic, such as the person’s age, sex, race or disability. There are some limited exceptions and exemptions.

Employers can be liable for acts of bullying by their employees. This is called ‘vicarious liability’.

For example: Colleagues bullied a co-worker with an intellectual disability. Because this treatment was based on the fact he had an intellectual disability, a complaint of disability discrimination could be made.

Bullying is also prohibited by the Fair Work Act 2009 (Cth). The Act defines bullying as ‘repeated unreasonable behaviour towards another person or group which creates a risk to health and safety.’ Bullying does not include reasonable management action carried out in a reasonable manner.

Employees in organisations covered by the Fair Work Act can apply to the Fair Work Commission for an order to stop the bullying. In addition, employers have an obligation under occupational health and safety legislation to eliminate or reduce the risks to employees' health and safety caused by workplace bullying.

Caring responsibilities can include caring for young children, for children or adults with disabilities, mental illness, chronic illness, or for older people. 

Many employees will have caring responsibilities at different times in their lives.

Employers have an obligation to avoid discrimination against carers in some circumstances.

Under the Sex Discrimination Act, it is against the law for employers to directly discriminate against a person because of their responsibilities to care for a family member.

Under the Disability Discrimination Act, it is against the law to discriminate against a person because of their association with a person with a disability.

It is good practice for organisations to develop strategies to support employees with caring responsibilities.

Example: An employer wishes to support an employee who has primary care for an elderly parent. The employer does this by providing information and resources on the organisation’s policies and the services available in the community. The employer also provides flexible work arrangements which allow the employee to work from home and to work part-time when required.

A complaint of discrimination or harassment can be made to the Australian Human Rights Commission about an issue covered by federal anti-discrimination law. Under the Australian Human Rights Commission Act, the Commission can also investigate and resolve complaints of discrimination, harassment and bullying in employment based on a person’s criminal record, trade union activity, political opinion, religion or social origin.

It does not cost anything to make a complaint to the Commission. An employee, customer, or any other person who has experienced discrimination or harassment can make a complaint.

Once a complaint has been received, the Commission will contact the person or organisation against whom the complaint has been made to allow them a fair opportunity to respond and resolve the complaint.

Where appropriate, the Commission will invite the parties to participate in conciliation. This is where the people involved in a complaint talk through the issues with the help of someone impartial and settle the matter on their own terms.

Complaints can be resolved in a number of different ways, for example, through an apology, reinstatement to a job, changes to a policy or compensation.

The Commission is not an advocate for the person making the complaint or the person or organisation responding to the complaint. The Commission is not a court and under federal discrimination laws, the Commission cannot decide if discrimination has occurred. Rather, the Commission’s role is to get both sides of the story and help those involved try to resolve the complaint.

If the complaint is not resolved or is discontinued for some other reason, the complainant may take the complaint of unlawful discrimination or harassment to court.

Under the Australian Human Rights Commission Act complaints of discrimination in employment harassment and bullying in employment based on a person’s criminal record, trade union activity, political opinion, religion or social origin will be reported to Parliament where the Commission finds a breach of the Act.

Establishing a process to resolve complaints of discrimination and harassment can improve staff satisfaction and help avoid complaints to external agencies or other legal action. 

Under federal anti-discrimination laws, if an organisation argues that the organisation should not be held liable for any discrimination or harassment by one of its employees, the organisation will need to demonstrate that it had taken all reasonable steps to prevent or avoid the discrimination or harassment.

An important factor in deciding whether the organisation had done enough to prevent discrimination is whether there was an effective complaint handling procedure in place.

A good complaint process will be fair, confidential, transparent, accessible and efficient. It is good practice to offer both informal and formal complaint handling procedures.

Example of an informal procedure: An employee believes they have been sexually harassed by a colleague. The employee asks their supervisor to speak to the alleged harasser on their behalf. The supervisor privately conveys the individual’s concerns and reiterates the organisation’s sexual harassment policy to the alleged harasser without assessing the merits of the case.

Example of a formal procedure: An employee believes they have been sexually harassed. The employee makes a formal complaint to the supervisor. The supervisor then investigates the claims to determine whether they occurred. Management undertakes a process to determine the most appropriate outcome.

If a complaint of discrimination or harassment is made to the Australian Human Rights Commission, the complaint may be resolved through a process known as ‘conciliation’.

Conciliation is an informal, flexible approach to resolving complaints. The Commission tries to help everyone involved in the complaint to understand the issues and find a solution that is acceptable to everyone. We do not take sides and remain impartial at all times.

Conciliation can take place in a face-to-face meeting called a ‘conciliation conference’ or through a telephone conference. In some cases complaints can be resolved through an exchange of letters or by passing messages by phone or email through the conciliator.

Outcomes will vary depending on the nature of the complaint. For example, agreements can include an apology, reinstatement to a job, compensation for lost wages, changes to a policy or putting in place anti-discrimination policies.

If a complaint of unlawful discrimination or harassment cannot be resolved by conciliation, the person making the complaint can make an application to have the matter heard in court.

Complaints of discrimination, harassment and bullying in employment based on a person’s criminal record, trade union activity, political opinion, religion or social origin under the Australian Human Rights Commission Act will be reported to Parliament where the Commission finds a breach of the Act.

A Contact officer – sometimes known as a harassment contact officer, employee support officer, or equal opportunity officer – is a staff member who assists employees who experience discrimination, bullying and/or harassment in the workplace.

The contact officer is not responsible for investigating or making decisions about a complaint. Generally, contact officers are not human resources staff or managers as these roles may conflict with the responsibilities of a contact officer.

A contact officer should:

• listen to an employee’s concerns about discrimination, bullying, and/or harassment
• remain impartial when providing information about internal and external complaint processes
• provide information about available support services; for example, employee assistance programs
• be transparent with colleagues about circumstances where serious allegations may need to be reported to third parties such as human resources or police

Contact officers form part of an organisation-wide approach to preventing and addressing bullying, discrimination, and harassment.
 

Definition

Criminal record discrimination occurs when someone does not experience equality of opportunity in employment because of their criminal record. This may include being refused a job, being dismissed from employment, being denied training opportunities or being harassed at work.

It is not discrimination if a person’s criminal record means that he or she is unable to perform the inherent requirements of a particular job. This must be determined on a case-by-case basis, according to the nature of the job and the nature of the criminal record. Employers in certain industries may also be legally obliged to refuse employment to people with certain types of criminal records.

Legal Protection

Criminal record discrimination is not unlawful under federal anti-discrimination law. However, Tasmania and the Northern Territory have laws that make criminal record discrimination unlawful.

The Commission can investigate complaints of discrimination in employment on the basis of criminal record and, where appropriate, try to resolve them by conciliation.

Employers should only ask applicants and employees to disclose specific criminal record information if they have identified that certain criminal convictions or offences are relevant to the inherent requirements of the position.

It is common for relationships and attractions to develop in the workplace. As an employer, it is important to ensure that these circumstances do not lead to incidents of sexual harassment.

Sexual harassment is any unwanted or unwelcome sexual behaviour where a reasonable person would have anticipated the possibility that the person harassed would feel offended, humiliated or intimidated. It has nothing to do with mutual attraction or consensual behaviour.

The fact that two individuals have been in a consensual sexual relationship does not mean that sexual harassment may not occur following the end of the relationship.

Example: A young employee and her boss engaged in consensual sexual intercourse on four occasions. The woman’s boss engaged in a range of other conduct of a sexual nature. A court found some of this was welcome. However, the court also found that certain acts – including giving the woman gifts of a sexual nature, such as underwear, sending explicit text messages and attempting to share a bunk bed – was unwelcome sexual harassment.

An unwanted request to go out on a date can also be sexual harassment.

Example: An employee in a small food company said the owner repeatedly asked her out, as well as frequently kissing her on the cheek and commenting on her looks. This could be sexual harassment.

Sexual harassment in the workplace is against the law. A person who sexually harasses someone else is responsible for their behaviour. However, employers can also be liable for the actions of their employees. This is called ‘vicarious liability’.

Employers should ensure that they address all complaints of sexual harassment with care.

They should also ensure that sexual conduct between employees, even if it is consensual, does not create an unpleasant and sexualised workplace for others.

Definition

Direct discrimination happens when a person, or a group of people, is treated less favourably than another person or group because of their background or certain personal characteristics.

Legal Protection

Direct discrimination is unlawful under federal discrimination laws if the discrimination is based on protected characteristics, such as a person’s race, sex, pregnancy, marital status, family responsibilities, breastfeeding, age, disability, sexual orientation, gender identity or intersex status. Some limited exemptions and exceptions apply.

For example: It could be ‘direct age discrimination’ if an older applicant is not considered for a job because it is assumed that they are not as familiar or comfortable with new technology compared with a younger person.

Definition

Disability discrimination occurs when a person is treated less favourably, or not given the same opportunities as others in a similar situation, because of their disability. It can also occur when an unreasonable rule or policy is the same for everyone but has an unfair effect on people with a particular disability.

For example: It would be ‘direct disability discrimination’ if a nightclub or restaurant refused a person entry because they are blind and have a guide dog.

Legal Protection

The Disability Discrimination Act covers people who have:

• temporary and permanent disabilities
• physical, intellectual, sensory, neurological, learning and psychosocial disabilities
• diseases or illnesses
• physical disfigurement
• medical conditions and work-related injuries.

It is against the law to discriminate against a person on the basis of disability in many areas of public life, including: employment, education, getting or using services, renting or buying a house or unit and accessing public places. There are limited exceptions and exemptions.

Employer's Obligations

Employers have a legal obligation to remove barriers that people with disabilities may face at work. Making these changes is known as ‘reasonable adjustments’. A failure to make reasonable adjustments may be discrimination.

The Federal Government can provide financial assistance for workplace adjustments for employees with disabilities.

It is not unlawful to discriminate against an employee on the basis of disability if the person cannot perform the inherent requirements of a job after reasonable adjustments have been made.

Employers can also be liable for the acts of their employees. This is called ‘vicarious liability’.

The Act allows for positive discrimination in some limited circumstances.

Definition

Discrimination happens when a person, or a group of people, is treated less favourably than another person or group because of their background or certain personal characteristics. This is known as ‘direct discrimination’.

For Example: An employer refused to hire a suitably qualified person as a shop assistant because they were Aboriginal, and instead hired a less qualified person of a different racial background. This could be racial discrimination.

It is also discrimination when an unreasonable rule or policy applies to everyone but has the effect of disadvantaging some people because of a personal characteristic they share. This is known as ‘indirect discrimination’.

For Example: A policy that says only full-time workers will be promoted could discriminate against women who are more likely to work part-time to accommodate their family responsibilities.

Legal protection

Discrimination can be against the law if it is based on a person’s:

• age
• disability, or
• race, including colour, national or ethnic origin or immigrant status
• sex, pregnancy, marital or relationship status, family responsibilities or breastfeeding
• sexual orientation, gender identity or intersex status.

Discrimination on these grounds is against the law in a number of areas of public life, including: 

• employment
• education
• getting or using services
• renting or buying a house or unit. 

Some limited exceptions and exemptions apply.

Employers have a legal responsibility to take all reasonable steps to prevent discrimination on these grounds. Employers can also be liable for the discriminatory acts of their employees. This is called ‘vicarious liability’.

Under the Australian Human Rights Commission Act, individuals can also lodge complaints with the Commission concerning discrimination in employment because of their religion, political opinion, national extraction, nationality, social origin, medical record, criminal record or trade union activity. Complaints will be reported to Parliament where the Commission finds a breach of the Act.

Employers often set rules regarding how their employees are expected to dress in the workplace. Employers should ensure that any dress code they propose does not amount to discrimination.

Discrimination is against the law if a person is treated unfairly because of a protected characteristic, such as his or her race, sex, age, disability, sexual orientation, gender identity or intersex status. Although it is not unlawful under federal law to discriminate on the basis of religion, the Commission may investigate complaints of religious discrimination in employment and try to resolve these by conciliation.

Rules regarding dress could be discriminatory if they single out some employees for different treatment because of their background or certain personal characteristics.

Example: An employer’s dress code requires female employees to wear revealing clothing but this does not apply to male employees. This could be sex discrimination.

It could also be discrimination if an employer puts in place a dress code that appears to treat everyone the same but which actually disadvantages some people because of a certain personal characteristics. If the requirement is not reasonable in the circumstances, it could be discrimination.

Example: It may be indirect discrimination if a policy says that all employees must wear a particular uniform if it is difficult for a pregnant employee to wear that uniform.

It is against the law for employers to discriminate directly against a person because of their responsibilities to care for a family member. This includes caring for a spouse or de-facto partner, child, grandchild, brother, sister, parent or grandparent. There are some limited exemptions.

Discrimination happens when a person is treated less favourably than another person in the same or similar circumstances because that person has family responsibilities.

Example: An employee worked both weekday and weekend shifts. When the employee’s family responsibilities increased, the employee asked to work fewer weekend shifts. The employee was dismissed.. This could be discrimination.

It is good practice for employers to take positive steps to assist employees with family responsibilities to do their job and meet their family responsibilities. This could include changing the hours they work or being flexible around their starting or finishing times.

A growing number of organisations recognise that flexible work arrangements are vital to the successful recruitment and retention of their employees.

Flexible work arrangements can also help employers meet their obligation to avoid discrimination against employees with disabilities, older employees and employees with family responsibilities.

Flexible work arrangements can include:

• changing hours of work (e.g. working less hours or changing start or finish times)
• changing patterns of work (e.g. working split shifts or job-sharing)
• changing the place of work (e.g. working from home).

Flexible work arrangements can be one-off or be ongoing.

Under the Fair Work Act 2009 (Cth), some employees have the right to ask for flexible work arrangements. These employees include: parents or those with the responsibility for the care of a child who is school aged or younger, carers’ people with disabilities, people aged 55 or older, people experiencing family or domestic violence and people who provide care or support to a member of their household or immediate family who requires care and support because of family and domestic violence.

Requests for flexible work arrangements must be seriously considered by the employer and can only be refused on reasonable business grounds.

People who are gay, lesbian or bisexual are protected from discrimination by law. The Sex Discrimination Act makes it unlawful to treat a person less favourably than another person in a similar situation because of their sexual orientation. There are some limited exemptions.

Example: It may be discrimination for an employer not to promote an employee to a more senior role because he is gay.

Same-sex couples are also protected from discrimination under the definition of ‘marital or relationship status’ in the Act.

Example: A company policy that offers benefits to an employee’s husband or wife, such as discounted travel or gym membership, may disadvantage employees with a same-sex partner because of their sexual orientation and/or relationship status.

Women experience inequality in many areas of their lives. At work, women face a gender ‘pay gap’ and barriers to leadership roles. Many encounter reduced employment opportunities because of the time they give to family and caring responsibilities.

Sexual harassment and gender-based violence also threaten women’s basic right to feel safe and respected at work, in public, in places of study and at home.

Organisations can play an important role to promote gender equality.

They have a legal responsibility not to discriminate against employees and to take all reasonable steps to prevent sex discrimination and sexual harassment. It is against the law to discriminate against a person because of their sex, gender identity, intersex status, sexual orientation, marital or relationship status, family responsibilities, because they are pregnant or might become pregnant or because they are breastfeeding.

Further, best practice employers ensure that men and women performing the same work, or different work of equal value, are paid the same amount. The Fair Work Commission can also make an equal remuneration order requiring certain employees to be provided equal remuneration for work of equal or comparable value.

Organisations can also promote gender equality by taking proactive steps, such as:

• setting targets for the recruitment and promotion of women; for example specifying that the organisation requires at least 30 per cent of senior positions to be filled by women
• offering employees flexible work arrangements, such as flexible start and finish times
• educating employees that sexual harassment will not be tolerated and responding swiftly to complaints.

The Sex Discrimination Act makes it unlawful to discriminate against a person because of their gender identity. There are some limited exemptions.

Gender identity discrimination happens when a person is treated less favourably than another person in a similar situation because of that person’s gender-related identity, appearance, mannerisms or other gender-related characteristics of the person. Discrimination can also happen when a policy applies to everyone but disadvantages a person because of their gender identity and the policy is not reasonable.

Example: An organisation’s human resources policy does not permit changes to an employee’s records. The policy may require a transgender woman to continually disclose information about her gender identity in order to explain discrepancies in personal details.

Employers can also be liable for the discriminatory acts of their employees. This is called vicarious liability.

Harassment can be against the law when a person is treated less favourably on the basis of certain personal characteristics, such as race, sex, pregnancy, marital status, breastfeeding, age, disability, sexual orientation, gender identity or intersex status. Some limited exemptions and exceptions apply.

Harassment can include behaviour such as:

• telling insulting jokes about particular racial groups
• sending explicit or sexually suggestive emails or text messages
• displaying racially offensive or pornographic posters or screen savers
• making derogatory comments or taunts about someone’s race
• asking intrusive questions about someone’s personal life, including his or her sex life.

The law also has specific provisions relating to certain types of harassment.

• Sexual harassment is any unwanted or unwelcome sexual behaviour where a reasonable person would have anticipated the possibility that the person harassed would feel offended, humiliated or intimidated. It has nothing to do with mutual attraction or consensual behaviour.

• Harassment linked to the disability of a person or their associate is against the law.

• Offensive behaviour based on racial hatred is against the law. Racial hatred is defined as something done in public that offends, insults, humiliates or intimidates a person or group of people because of their race, colour or national or ethnic origin.

A one-off incident can constitute harassment. All incidents of harassment require employers or managers to respond quickly and appropriately.

Employers can also be held liable for harassment by their employees. This is called ‘vicarious liability’.

Hearing impairments can be covered by the Disability Discrimination Act.

The Act makes it against the law to discriminate against a person because of disability. There are some limited exceptions and exemptions.

It is not unlawful to discriminate against an employee on the basis of their disability if the person cannot perform the inherent requirements of a job after reasonable adjustments have been made.

There are, however, a range of adjustments that can be made for a person with a hearing impairment. These include:

• modifying work arrangements, for example, giving a person with a hearing impairment a workspace with minimal background noise
• providing training for staff on effective communication with a person with hearing impairment
• providing equipment such as an audio loop.

Example: An employer withdrew an offer of employment for the role of customer service officer after a hearing test showed the prospective employee had less than 90% hearing. The employer had not made reasonable adjustments to support the prospective employee to do the job. This could be disability discrimination.

Human rights are based on the principles of dignity, equality and mutual respect.

Human rights recognise the inherent value of each person, regardless of their background, where they live, what they look like, what they think or what they believe.

People’s human rights are respected when they are treated fairly and have the ability to make genuine choices in their daily lives.

The operations of an organisation, regardless of its size, can have an impact on the human rights of many people, including its employees, customers, suppliers and their employees, business partners and the communities in which the organisation operates.

Australian laws require organisations to protect some human rights. These include laws prohibiting discrimination and harassment in the workplace, laws requiring employers to provide equal employment opportunities, and laws ensuring fair and safe conditions of work.

Identified positions are positions where an employer may identify that a position is to be filled only by a person with a particular attribute. This might mean an Aboriginal or Torres Strait Islander applicant, a person with a disability, a person of a particular sex or a person of a particular age.

Identified positions help people who experience disadvantage to access equal opportunity in employment. Identified positions also benefit employers by allowing them to hire a person with particular experiences and expertise, such as cultural knowledge.

Example: A community store services a customer base with many Aboriginal and Torres Strait Islander people. The community store decides to advertise an identified position for an Aboriginal or Torres Strait Islander person.

A position identified for people of a particular age can be lawful if it provides a genuine benefit to people of a particular age.

It can also be lawful to discriminate in order to achieve substantive equality between men and women, people of different marital status and between women who are or may become pregnant and women who are not.

A position identified for people of a particular racial background, such as Aboriginal or Torres Strait Islander people, can be lawful if it is taken for the sole purpose of advancement of a certain racial or ethnic group to ensure those individuals’ equal enjoyment of human rights.

An employer may also seek a temporary exemption to allow for an identified position where a position created is for a person of a particular age, sex or a person with a disability and permanent exemptions do not apply.

It is against the law to discriminate against a person because that person is or has been an immigrant. There are some limited exceptions.

Discrimination on the basis of immigrant status occurs when a person is treated less favourably, or not given the same opportunities as others in a similar situation, because of their immigrant status.

This does not mean that an employer has to employ someone who does not have a valid work visa. Australian organisations are only permitted to employ ‘legal workers’ who are entitled to work in Australia. Legal workers are Australian or New Zealand citizens, permanent residents and people in Australia with a valid visa that allows them to work.

The Department of Immigration and Border Protection can provide further information.

Definition

Indirect discrimination occurs when there is an unreasonable rule or policy that is the same for everyone but has an unfair effect on people who share a particular attribute.

Examples: 

1. It could be indirect sex discrimination if a policy says that managers must work full-time, as this might disadvantage women because they are more likely to work part-time because of family responsibilities.
2.  It could be indirect disability discrimination if the only way to enter a public building is by a set of stairs because people with disabilities who use wheelchairs would be unable to enter the building.

Legal Protection

Indirect discrimination is unlawful if the discrimination is based on certain attributes protected by law, such as a person’s race, sex, pregnancy, marital or relationship status, breastfeeding, age, disability, sexual orientation, gender identity or intersex status. Some limited exceptions and exemptions apply.

Indirect discrimination is not unlawful when the rule or policy is reasonable, having regard to the circumstances of the case.

Discrimination in employment because of a person’s age or disability is against the law in many circumstances.

However, it may not be unlawful to refuse to employ a person if, because of their age or disability, they are unable to carry out the inherent requirements – or essential duties – of the job.

The inherent requirements of a job will vary depending on what the job is. They may include:

• the ability to perform tasks which are essential to perform a job productively and to the required quality
• the ability to work effectively in a team or other organisation
• the ability to work safely.

It is the responsibility of the employer to clearly spell out the essential duties of the position being advertised and what type of work the employee is expected to do.

Example: A young person may not be able to meet the inherent requirements of a courier job if they are not yet eligible for a driver’s licence.

If a person is able to perform the inherent requirements of a job and is the best person for the job, they should be offered the position.

People with disabilities or health conditions must be assessed on their current ability to do the job – not on assumptions about how their disability or health condition may have affected them in the past or may affect them in the future.

If a person with a disability cannot perform the inherent requirements of a job because of the disability, the employer must consider how the person with a disability could be provided with reasonable adjustments to help them do the job.

Example: A person with a prosthetic foot was dismissed from their position at a funeral parlour because they could not carry coffins as smoothly as other employees. Carrying coffins was an inherent requirement of the job. However, with a small amount of training, the employee could have carried out this requirement to the appropriate standard. The dismissal was found to be disability discrimination.

Organisations often have rules regarding the appearance of their employees in the workplace. Employers should ensure that any proposed rules that allow or prohibit jewellery to be worn in the workplace do not amount to discrimination.

Rules about wearing jewellery could amount to discrimination if they impose different requirements for different groups of people, such as men and women.

Example: An employer dismissed a male shop assistant who wore an earring for refusing to remove the earring. The organisation’s dress policy allowed female employees to wear earrings and many female employees wore earrings to work without consequences. The employer’s actions could be sex discrimination.

It could also be discrimination if a rule about wearing jewellery appears to treat everyone the same but actually disadvantages some people because of a particular attribute protected by anti-discrimination laws. If the requirement is not reasonable in the circumstances, it could be discrimination.

Although it is not unlawful to discriminate on the basis of religion under federal laws, the Commission may investigate complaints of religious discrimination in employment and try to resolve these by conciliation.

Example: An employer prohibited staff from wearing any jewellery to work. This rule unfairly disadvantaged a Sikh employee whose religious beliefs required him to wear a ‘kara’ or metal bracelet.

How a position is advertised is crucial to attracting the right sort of people for the job.

A good advertisement will focus exclusively on the essential skills and abilities needed to do the job. Only refer to personal characteristics, such as age, sex, marital status or race, if they are part of the genuine requirements of the job.

A discriminatory advertisement can limit the range of applicants you attract. Employers are required by law to avoid discrimination on the basis of protected attributes when recruiting staff.

Example: An advertisement for a promoter asks for applicants to be "single, fun-loving people who are free to work nights”. This discriminates on the basis of marital status by asking that applicants be single, where this is not part of the genuine requirements of the job.

Job advertisements should not discourage some people from applying or imply that only certain applicants will be considered. They should not include words, phrases or euphemisms that could be seen as restrictive.

Example: Phrases like “join a dynamic team” or “seeking mature, experienced professional” suggest that only applicants of a certain age will be considered.

Encourage as many suitable people as possible to apply. Advertise in a range of different ways to reach a greater diversity of applicants.

Consider including a statement in the advertisement that encourages people from different backgrounds to apply, including Aboriginal and Torres Strait Islander people, people from different cultural backgrounds and people with disabilities.

If a recruitment agency is involved, it is important to ensure that they have a clear understanding of the requirements of the position and are fully aware of equal employment principles and anti-discrimination laws.

Job sharing is a flexible work arrangement where one job is done by more than one person. It can be an option if employees want to work part-time but the job that is available needs to be worked on a full-time basis.

Example: One employee works part-time and does the job on Monday and Tuesday and another employee does the same job, also working part-time, on Wednesday, Thursday and Friday.

Job sharing, like other flexible work arrangements, can help business recruit and retain employees, including employees with disabilities, older employees and employees with caring responsibilities.

Job sharing is also a way of making a reasonable adjustment in the workplace to allow a person with a disability to do a job.

Employers can only refuse flexible work arrangements on reasonable business grounds under the Fair Work Act 2009 (Cth)

Legal Protection

Under the Racial Discrimination Act, treating someone differently because of the language that they speak may be against the law in some circumstances. Discriminating against someone on the basis of their race or ethnic origin is against the law, and language may be directly linked to ethnic background.

For example: Two employees were speaking to each other in the lunchroom in their first language, which was not English. The manager asked them to stop speaking in their first language and said that staff had to speak English at all times. This could be racial discrimination.

Employer's Obligations

Employers have a legal responsibility to take all reasonable steps to prevent racial discrimination.

Employers should clearly state in a job description the essential skills required for the job for example, ‘high level spoken English’, rather than discriminating based on factors linked to race, such as language.

The following federal anti-discrimination laws protect people from discrimination and harassment:

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

Federal discrimination laws prohibit discrimination in different areas of public life against people on the basis of:

• race, including colour, national or ethnic origin or immigrant status
• sex, pregnancy, marital status, family responsibilities and breastfeeding
• age
• disability
• sexual orientation, gender identity and intersex status.

State and territories also have laws against discrimination. While they share a number of similarities, state and territory laws may cover additional grounds of discrimination and can apply in slightly different ways.

Lesbians are protected from discrimination by law. The Sex Discrimination Act makes it unlawful to treat a person less favourably than another person in a similar situation because of her sexual orientation. There are some limited exemptions.

Same-sex couples are also protected from discrimination under the definition of ‘marital or relationship status’ in the Act.

Example: A company policy that offers benefits only to an employee’s husband or wife, such as discounted travel or gym membership, may disadvantage an employee with a same-sex partner because of her sexual orientation and/or relationship status.

It is against the law to discriminate against a person because of his or her marital or relationship status. This includes people who are single, married, in a de facto relationship, separated, divorced, widowed or never married. It also includes people in same-sex relationships. There are some limited exemptions.

Discrimination happens when a person is treated less favourably than another person with a different marital or relationship status would be treated in the same or similar circumstances.

It is also discrimination when there is an unreasonable requirement or practice that is the same for everyone but has an unfair effect on people of a particular marital or relationship status.

Example: A company that offers only married employees working in remote locations allowances and leave to visit their families may be disadvantaging employees who are single or in de facto relationships.

Some organisations include a medical assessment as part of their recruitment process to gather additional information that will be used to select the successful candidate. However, it is important that employers do not discriminate against any candidate when using this information.

It is against the law to refuse to employ a person based on information from a medical examination that discloses a disability if the information is not related to how adequately the person could perform the inherent requirements of the job.

It may be necessary for candidates to undergo medical testing to assess potential health risks. These risks could be high for candidates with particular health problems working in certain jobs; for example, jobs that involve heavy lifting.

Organisations that require medical testing as part of the selection process should:

• Ensure the medical examination only recovers information relevant to the essential requirements of the job
• Ensure test results remain strictly confidential
• Advise the candidate of the results.

Example: A woman disclosed that she had depression in a pre-employment medical assessment for a job at a supermarket. After this information was disclosed, the supermarket withdrew the offer of employment to her. This could be discrimination.

Mental illnesses can be covered by the definition of disability in the Disability Discrimination Act.

It is against the law to discriminate against a person because of their disability. There are some limited exceptions and exemptions.

Disability discrimination occurs when a person is treated less favourably, or not given the same opportunities, as others in a similar situation because of their disability.

It also occurs when an unreasonable rule or policy is the same for everyone but has an unfair effect on people with a disability.

Employers should consider what reasonable adjustments, or changes to the working environment, could be made to support a worker with a mental illness to perform their duties more effectively.

Example: An employee told their employer that they had been diagnosed with anxiety. After discussing what would work best for them both, they agreed that the worker could change responsibilities to provide administrative duties rather than telephone contact with customers.

It is not unlawful discrimination to discriminate against an employee on the basis of their disability if the person cannot perform the inherent requirements of a job after reasonable adjustments have been made.

Employers also have obligations to employees with disabilities, including those with mental illness, under the Fair Work Act 2009 (Cth) and occupational health and safety legislation. Privacy legislation applies to disclosures about an employee’s personal information.

Definition

Discrimination on the basis of national origin occurs when a person is treated less favourably, or not given the same opportunities, as others in a similar situation because of his or her national origin.

Legal Protection

It is against the law to discriminate against a person because of his or her national origin.

For example: An employee of Indian national origin alleged the supervisor said ‘don’t they teach you how to add up numbers in India?’ The employee alleged he was also denied opportunities to speak in meetings because of perceptions about his language skills.

Although acts of discrimination based on ‘national origin’ are prohibited by the Racial Discrimination Act, discrimination based on nationality or citizenship is not prohibited.

National origin is different to citizenship. According to the law, national origin should be limited to characteristics determined at the time of the person’s birth, either by the place of birth, the national origin of a parent or parents, or a combination of these factors.

New parents may require parental leave when a child is born or adopted. Most employees in Australia are eligible for unpaid parental leave if they have completed at least 12 months of continuous service with their employer.

Since 1 January 2011, most workers are eligible for paid parental leave when a child is born or adopted, which is fully funded by the Australian Government. They may also have additional entitlements to paid parental leave under a company policy, an agreement with their employer or an award.

Employers should not make assumptions about the leave options that a parent of a new child may take.

Under the Sex Discrimination Act employers must treat workers who are returning from parental leave fairly. A woman who returns to work after maternity leave has the right to return to the same job she had before going on leave. If the position no longer exists, she has the right to another job which is as close as possible in pay and responsibilities to the one she held before.

It is against the law for employers to directly discriminate against a person because of family responsibilities.

In some circumstances, employers can require employees and potential employees to meet the physical requirements of a job.

However, physical requirements can amount to unlawful discrimination in some circumstances. Discrimination could be against the law if it is linked to a protected attribute, such as a person’s race, age, sex or disability, and the requirement is not reasonable.

Example: An employer imposes a rule that all security guards be taller than 180 cm, even though a guard’s height does not impact their ability to do the job. This could be sex and racial discrimination because females and people of particular racial backgrounds may be less able to meet the physical requirements.

It may not be against the law to refuse to employ a person because of their physical capability if the person cannot perform the inherent requirements of the job.

Example: It would be an inherent requirement of the job of bicycle courier that a person be physically fit enough to ride bicycles to deliver packages for a certain number of hours each day.

An employer may be obliged to conduct a police check where there is a legal requirement that an employee or job applicant should not have a certain criminal record.

However, an employer should only ask job applicants and employees to disclose criminal record information if certain criminal convictions or offences are relevant to the inherent requirements of the job.

Asking an applicant or employee irrelevant questions about their criminal record and then relying on this information to treat the person less favourably could be discrimination. The Commission can investigate complaints of discrimination in employment on the basis of criminal record and, where appropriate, try to resolve them by conciliation.

Employees and applicants must consent to a police check. If a police check is required for a job, this should be stated in information sent out to job applicants.

Example: An applicant for a job as a nurse was told their application would not be considered if they did not consent to a police history check. The employer could not show that it was relevant to the inherent requirements of the job that a police check be completed. This could be discrimination.

The type of policies your organisation should put in place will depend on the needs and circumstances of your particular workplace.

Some organisations choose to have a single workplace policy which prohibits discrimination, bullying, and harassment on a range of grounds, including a person’s sex, race, disability, age or sexual orientation. Others may decide there is a need for an additional stand-alone sexual harassment policy.

In addition, organisations may have a separate policy on the appropriate use of electronic communication in the workplace.

If an organisation decides to use a general anti-discrimination policy, it is important that the different types of discrimination and harassment are well-defined and addressed comprehensively. If the policy is too broad or generic it can create confusion among staff and, as a result, not be effective.

A good workplace policy on discrimination and harassment should communicate:

• a strong statement of the organisation’s attitude to discrimination and harassment
• a definition of discrimination and harassment
• a statement that discrimination and harassment on any of the grounds in federal/state anti-discrimination legislation is against the law
• circumstances where discrimination and harassment can occur
• a statement that everyone has a responsibility to prevent workplace harassment and discrimination
• information on how and where to seek help if discrimination or harassment occurs
• the likely consequences of unlawful discrimination or harassment.

It can be discrimination when a person does not experience equal opportunity in employment because of his or her political opinion. This may include being refused a job, being dismissed from employment, being denied training opportunities or being harassed at work.

The Commission may investigate complaints of discrimination in employment based on political opinion and, where appropriate, try to resolve them by conciliation.

Political opinion discrimination is not unlawful under federal law. However, it could be unlawful in the Australian Capital Territory, Northern Territory, Queensland, Tasmania and Victoria in some circumstances.

Definition

Discrimination on the basis of certain attributes such as age, sex, race or disability is not always against the law.

The term ‘positive discrimination’ is sometimes used to refer to ‘positive measures’ or ‘special measures’. Special measures aim to foster greater equality by supporting groups of people who face, or have faced, entrenched discrimination so they can have similar access to opportunities as others in the community.

Examples of Positive Discrimination

Age

The Age Discrimination Act allows for “positive measures to be taken on the basis of age”. The Act says that it is “not against the law to provide a genuine benefit to people of a particular age group or to do something that helps meet an identified need for people of a certain age group or is intended to reduce a disadvantage experienced by persons of a particular age.”

For example: A hairdresser gives discounts to customers with a Seniors Card.

Sex 

Federal discrimination laws allow special measures to be taken to improve equality of opportunity for people based on their sex.

For example: A gym offers a women’s only exercise class as a special measure after it receives feedback that women are less likely to participate in exercise classes with men because they feel uncomfortable.

Special measures can also be taken ‘to achieve equality of opportunity for people based on their sexual orientation, gender identity, intersex status, relationship status, pregnancy or potential pregnancy status or family responsibilities’.

It is against the law to discriminate against a woman because she is pregnant or might become pregnant.

Pregnancy discrimination happens when a woman is treated less favourably than another person because she is pregnant or because she may become pregnant. It is also discrimination when there is an unreasonable requirement or practice that is the same for everyone but has an unfair effect on pregnant women.

Example: It could be discrimination if an employer does not hire a suitably qualified woman because she is married and the employer thinks she might become pregnant soon.

Example: It could be discrimination if a policy says that all employees must wear a particular uniform if it is difficult for a pregnant employee to wear that uniform.

Women who are pregnant should be able to continue to work in the same way and under the same conditions as other employees, unless there are valid medical or safety reasons.

Under the Sex Discrimination Act, a woman who returns to work after maternity leave has the right to return to the same job she had before going on leave. If the position no longer exists, she has the right to another job which is as close as possible in pay and responsibilities to the one she held before.

Asking applicants certain questions in a job interview may disadvantage some people and could amount to discrimination. Employers are required by law to avoid discrimination when recruiting staff.

Employers should not seek unnecessary and potentially discriminatory information from applicants when they develop selection criteria or prepare interview questions. It could be discrimination if employers do so and then rely on this information in deciding not to offer a candidate a job.

For example, it may be against the law to ask job applicants whether they have ever made a workers’ compensation claim, how much sick leave they have taken or other questions about health conditions that do not relate to their ability to do the job.

If employers believe a job will be demanding, they should word a question in a way that asks whether the person can complete the inherent requirements of the job – such as interstate travel or long hours – rather than asking personal questions.

Example: An employer asks an applicant for a retail job if they have children. If they say they do and the employer relies on this information in deciding not to offer the job, the applicant could make a complaint of discrimination based on family responsibilities.

Employers may need to ask a candidate with a disability for information about the disability to determine whether they will be able to perform the inherent requirements of the job, to assess any health and safety risks or to identify any adjustments to the workplace that may be required.

Employers may need to ask a pregnant candidate for information about her pregnancy to determine whether she will be able to perform the requirements of the job and assess any health and safety risks.

Definition

Racial discrimination occurs when a person is treated less favourably, or not given the same opportunities, as others in a similar situation, because of their race, the country where they were born, their ethnic origin or their skin colour.

For example, an employer refused to hire a suitably qualified Aboriginal person as a shop assistant and instead hired a less qualified person of a different race because they felt they could lose customers if they had an Aboriginal person working in the shop. This could be racial discrimination.

Legal protection

The Racial Discrimination Act protects people against discrimination in all areas of public life including:

• employment
• education
• getting or using services
• renting or buying a house or unit
• accessing public places. 

There are some very limited exceptions. The Act also makes racial hatred unlawful.

Positive discrimination

In addition, the Act allows for ‘special measures’. This is a form of positive discrimination that aims to foster greater racial equality by supporting groups of people who face, or have faced, entrenched discrimination so they can have similar access to opportunities as others in the community.

For example, rental assistance given to Aboriginal and Torres Strait Islander students is a special measure. The purpose of the assistance is to increase participation rates of Aboriginal and Torres Strait Islander students in tertiary education to a level equivalent to the non-Indigenous community.

The Good Practice, Good Business factsheets help promote diversity and prevent discrimination in your workplace.

What is racism?

Racism can take many forms, such as jokes or comments that cause offence or hurt, name-calling or verbal abuse, harassment or intimidation, or commentary in the media or online that inflames hostility towards certain racial groups. Racism can also take the form of unfair treatment of people because of their race.

The Racial Discrimination Act

The Racial Discrimination Act makes racism that amounts to discrimination against the law. 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, the country where they were born, their ethnic origin or their skin colour.

Racism that is racial hatred can also be against the law. Racial hatred is doing or saying something in public, including in the workplace, based on the race, colour, national or ethnic origin of a person or group of people, which is likely to offend, insult, humiliate or intimidate. For example:

• making racist comments on blogs and social networking sites
• displaying racist posters or cartoons in the workplace
• calling people racist names in the workplace.

The Act contains exemptions to protect freedom of speech.

Employer's obligations

Employers have a legal responsibility to take all reasonable steps to prevent racial discrimination.

'Reasonable steps' may include putting in place policies and procedures to create a discrimination-free environment. It could also include procedures to deal with allegations of discrimination and harassment made by employees or customers.

It is against the law to victimise a person for making, or proposing to make, a complaint to the Australian Human Rights Commission about racial discrimination or racial hatred.

Employers can also be held legally responsible for discrimination or harassment by their employees. For more information, see the fact sheet, vicarious liability.

The Good Practice, Good Business guide provides more information on racial discrimination for employment

Some people with disabilities may face barriers at work because of some feature of their work situation which could readily be altered.

Making these changes is commonly referred to as ‘reasonable adjustments’. Employers can be required by law to make reasonable adjustments to the workplace. Failure to do so may be discrimination.

Adjustments should respond to the particular needs of the worker. Examples of adjustments include changes to work premises, changes to work schedules, modifying equipment or providing training.

Example: An employer obtained a larger computer screen and zooming software to allow a clerical worker with vision impairment to perform word processing tasks.

Employers are not required to make adjustments to their workplace if they can prove that an adjustment would be too expensive, difficult or time consuming or cause some other hardship. This is called ‘unjustifiable hardship’.

The Federal Government can provide financial assistance for workplace adjustments for employees with disabilities. See the Job Access Employee Assistance Fund page for more information.

Every organisation aims to recruit the best person for the job. That’s why it is important to be able to select from the widest possible range of applicants.

Recruitment processes that are discriminatory reduce an employer’s opportunity to find the best person for the job.

Employers who are recruiting staff should be aware of their responsibilities under federal anti-discrimination laws. These make it unlawful to discriminate against a person on the basis of certain protected attributes, such as race, sex, pregnancy, marital or relationship status, family responsibilities, breastfeeding, age, disability, sexual orientation, gender identity or intersex status.

Employers can prevent discrimination in their recruitment processes by:

• casting the net as widely as possible to attract a diverse pool of applicants
• carefully considering the inherent requirements of the job and framing the selection criteria and advertisement to match
• accommodating people who require adjustments, such as a person with a disability, to attend an interview
• not seeking irrelevant personal information from applicants
• setting aside personal bias, myths and stereotypes
• being consistent in the way candidates are treated
• educating others involved in recruitment, such as recruitment agencies, about their obligation not to discriminate.

Discrimination in employment on the basis of religion occurs when someone does not experience equality of opportunity in employment because of their religion. This may include being refused a job, being dismissed from employment, being denied training opportunities or being harassed at work.

Discrimination on the basis of religion alone is not unlawful under federal anti-discrimination law. However in some cases people have been found to be covered by the term ‘ethnic origin’ in the Racial Discrimination Act, and discrimination on this basis is against the law. In addition, the Commission may investigate complaints of religious discrimination in employment and, where appropriate, try to resolve them by conciliation. Discrimination related to religion, religious conviction, religious belief or religious activity can be unlawful under the laws of the ACT, Northern Territory, Queensland, Tasmania, Victoria and Western Australia. In South Australia, discrimination on the basis of religious dress or appearance in work or study can be unlawful.

Some people observe particular rules on clothing, appearance or jewellery for religious reasons. For example, some Sikh men wear a turban to adhere with their religious beliefs. Employers should not discriminate against a person in employment on the basis of their religious dress.

Example: An employer refuses to offer an employee a role serving customers because she wears a hijab.

Definition

Sex discrimination occurs when someone is treated less favourably, or not given the same opportunities as a person of a different sex, because of their sex.

It also occurs when a rule or policy applies to everyone but disadvantages a person based on his or her sex and the policy is not reasonable.

For example: A female employee claimed she was paid less than male colleagues in equivalent roles because she was female. She also claimed she was offered less promotional, training and professional development opportunities than her male colleagues because she was female. This could be sex discrimination.

Legal Protection

The Sex Discrimination Act protects people against discrimination in many areas of public life including:

• employment
• education
• getting or using services 
• renting or buying a house or unit. 

There are some limited exemptions.

The Act makes it unlawful to discriminate against a person on the basis of: 

• gender identity
• intersex status
• sexual orientation
• marital or relationship status
• family responsibilities
• pregnancy or potential pregnancy 
• or breastfeeding.

It also prohibits sexual harassment in many areas of public life including all work-related activity.

In addition, the Act allows special measures, or ‘positive discrimination’ for the purpose of improving equality of opportunity for people based on their sex.

Employer's Obligations

The Positive Duty imposes a legal obligation on organisations and businesses to take proactive and meaningful action to prevent sexual harassment, sex discrimination and other relevant unlawful conduct, in the workplace or in connection to work. Taking preventative action will help to create safe, respectful and inclusive workplaces. The Positive Duty requires organisations and businesses to actively prevent workplace sexual harassment, sex discrimination and other relevant unlawful conduct, rather than responding only after it occurs.

Sexual harassment is any unwanted or unwelcome sexual behaviour where a reasonable person would have anticipated the possibility that the person harassed would feel offended, humiliated or intimidated. It has nothing to do with mutual attraction or consensual behaviour.

Examples of sexual harassment include:

• staring, leering or unwelcome touching
• suggestive comments or jokes
• unwanted invitations to go out on dates or requests for sex
• intrusive questions about a person's private life or body
• unnecessary familiarity, such as deliberately brushing up against a person
• emailing pornography or rude jokes
• displaying images of a sexual nature around the workplace
• communicating content of a sexual nature through social media or text messages.

Sexual harassment is unlawful under the Sex Discrimination Act in different areas of public life, including employment, service delivery, accommodation and education. Some types of sexual harassment may also be criminal offences.

Example: A young woman was employed at a medical centre. At work, the director of the medical centre, who was an older male doctor, fondled and brushed against the women’s breasts, patted her bottom, tried to kiss her and massaged her shoulders.

Sexual harassment can also happen where a work environment or culture is sexually charged or ‘hostile’, even if the conduct is not directed at any particular employee.

A person who sexually harasses someone else is primarily responsible for their behaviour. However, in many cases, employers can also be held responsible for sexual harassment by their employees. This is called ‘vicarious liability’.

Employers have a responsibility to take all reasonable steps to prevent sexual harassment in employment, such as implementing a sexual harassment policy and providing training or information on sexual harassment.

The Sex Discrimination Act makes it unlawful to discriminate against someone because of their sexual orientation, gender identity or intersex status.

Sexual orientation discrimination happens when a person is treated less favourably than another person in a similar situation because he or she has a sexual orientation towards persons of the same sex; persons of a different sex; or persons of the same sex and persons of a different sex.

Example: A male employee was not promoted to a more senior role because he is bisexual.

Same-sex couples are also protected from discrimination under the definition of ‘marital or relationship status’ in the Act.

Example: A company policy that offers benefits to an employee’s husband or wife, such as discounted travel or gym membership, may disadvantage employees with a same-sex partner because of their sexual orientation and/or relationship status.

Gender identity discrimination happens when a person is treated less favourably than another person in a similar situation because of that person’s gender-related identity, appearance, mannerisms or other gender-related characteristics of the person.

Example: A shop assistant refused to serve a person who identifies and presents as a woman because that person has a deep and masculine-sounding voice.

Intersex status discrimination happens when a person is treated less favourably than another person in a similar situation because that person has physical, hormonal or genetic features that are neither wholly female nor wholly male; a combination of female and male; or neither female nor male.

Example: A physiotherapist refused to treat an intersex person because the person’s biological characteristics made the physiotherapist uncomfortable.

The Act makes discrimination against the law in many areas of public life including, among others, employment; education; getting or using services; or renting or buying a house or unit. There are some limited exemptions.

Social media postings can be against the law if they discriminate against, harass, bully or racially vilify a person.

Discrimination occurs when a person is treated less favourably than another person because of a particular attribute they have. Harassment or bullying can amount to discrimination in some circumstances.

Inappropriate posts, comments or content shared on social media can amount to sexual harassment.

Example: An employee at a car dealership posted a photo of herself wearing a bikini on a social networking site. The employee alleged that the owner of the car dealership posted comments of a sexual nature on the site in relation to the photographs. The employee made a complaint of sexual harassment.

Racially offensive material posted or shared on social media can be a form of racial hatred.

Example: A complaint of racial hatred was made about a social networking site that contained comments and images demeaning to Aboriginal people.

Employers can be held legally responsible for acts of discrimination or harassment that occur in the workplace or in connection with a person’s employment. This can include posts and comments made or circulated on social media. To minimise their liability, employers need to demonstrate that they have taken all reasonable steps to prevent discrimination or harassment from occurring in their workplaces.

They can take positive steps to do this by educating employees about appropriate social media use, providing training on discrimination and harassment and having a policy which addresses discrimination and harassment in social media use.

Special measures aim to foster greater equality by supporting groups of people who face, or have faced, entrenched discrimination so they can have similar access to opportunities as others in the community.

Special measures are sometimes described as acts of ‘positive discrimination’ or ‘affirmative action’. They are allowed under federal anti-discrimination laws.

The Sex Discrimination Act allows special measures that improve equality of opportunity for people based on their sex, sexual orientation, gender identity, intersex status, relationship status, pregnancy or potential pregnancy status or family responsibilities.

Example: A gym offers a women’s only exercise class as a special measure after it receives feedback that women are less likely to participate in exercise classes with men because they feel uncomfortable.

The Disability Discrimination Act allows for special measures that improve equality of opportunity for people with disabilities.

Example: A housing provider makes modifications to accommodation for a person with a disability.

The Racial Discrimination Act permits special measures that foster greater racial equality in the Australian community.

Example: Rental assistance given to Aboriginal and Torres Strait Islander students is a special measure. The purpose of the assistance is to increase participation rates of Aboriginal and Torres Strait Islander students in tertiary education to a level equivalent to the non-Indigenous community.

The Age Discrimination Act allows for positive measures to be taken. The Act says that it is “not against the law to provide a genuine benefit to people of a particular age group; to do something that helps meet an identified need for people of a certain age group or reduce a disadvantage experienced by people of a particular age”.

Example: A hairdresser gives discounts to customers with a Seniors Card.

Employers will sometimes set rules regarding the appearance of their employees in the workplace. However, it is important to ensure that any proposed rules that affect people with tattoos do not amount to discrimination.

Discrimination is against the law when people are treated unfairly because of a personal attribute that is protected by law, including race, sex and gender identity. Discrimination can happen when employers put in place conditions or requirements which appear to treat everyone the same but which actually disadvantage some people because of a personal attribute they share. If the requirement is not reasonable in the circumstances, it could be discrimination.

Example: An employer had a policy to refuse to hire any workers with visible tattoos, even for roles that involved no customer contact. A Maori job applicant who had a tattoo for reasons connected to his ethnic origin was not hired because of his tattoo. This could be racial discrimination.

It can be discrimination when a person does not experience equal opportunity in employment because of his or her activity in a trade union.

This includes being refused a job or dismissed from a job, being refused a promotion, transfer or other benefit associated with employment, given unfair terms or conditions of employment, being refused training opportunities, being refused flexible work arrangements or being harassed or bullied.

The Commission may investigate complaints of discrimination in employment on the basis of trade union activity and, where appropriate, try to resolve them by conciliation.

Discrimination on the basis of trade union activity is not unlawful under federal anti-discrimination law. However it is unlawful under the laws of the ACT, Northern Territory, Queensland, Tasmania and Western Australia in some circumstances.

Training for both employers and employees is a key aspect of preventing discrimination and harassment in the workplace.

Organisations and employers can undertake training to better understand how they can prevent discrimination and harassment in their workplace. They can also provide training for staff on their rights and responsibilities regarding discrimination and harassment in the workplace and how to identify and respond to incidents of discrimination and harassment.

To minimise liability for acts of discrimination and harassment that occur in their workplace or in connection with employment, employers must show that they have taken all reasonable steps to prevent discrimination or harassment from occurring in their workplace. Whether an employer has provided workplace training is a factor that will be considered in determining whether all reasonable steps have been taken.

Training can be delivered through an external provider. It is offered at a low cost by many state and territory anti-discrimination and human rights commissions. Some of these training courses can be delivered in the workplace and tailored to meet individual needs.

In very small businesses, training may be less formal, provided that the employer takes reasonable steps to ensure that all employees are aware of their rights and responsibilities regarding discrimination and harassment.

People who are transgender are protected from discrimination by law.

The Sex Discrimination Act makes it unlawful to treat a person less favourably than another person in a similar situation because of the gender-related identity, appearance, mannerisms or other gender-related characteristics of the person.

Example: A shop assistant refused to serve a person who identifies and presents as a woman because that person has a deep and masculine-sounding voice.

The Act makes discrimination against the law in many areas of public life including employment, education, getting or using services or renting or buying a house or unit. There are some limited exemptions.

People with disabilities can face significant barriers in many parts of their lives, including getting into and staying in the workforce and accessing public buildings and facilities.

The Disability Discrimination Act makes it against the law to discriminate against people with disabilities in many areas of public life, including employment, using goods and services and accessing public places.

Employers are required to make ‘reasonable adjustments’ to help a person with a disability carry out the inherent requirements of the job.

Similarly, shops, clubs and other buildings that are accessible to the general public should also be accessible to people with disabilities.

In some circumstances, however, it may be unreasonable to provide complete accessibility to a public building, particularly for existing buildings. Adjustments to a workplace to accommodate a person with disability could also be very onerous.

The Act provides an exception if the cost or difficulties of providing access will place an unjustifiable hardship on a person or organisation.

Example: It may not be against the law to provide entry to a building only by a set of stairs if the owner of the building can show that it would cause unjustifiable hardship to modify the building because it is beyond the financial means of the owner to do so.

However, before coming to this conclusion, a person or organisation should:

• thoroughly consider how access might be provided or adjustments made
• discuss the issues directly with the person or groups involved
• consult relevant sources of advice.

Unjustifiable hardship is based on an assessment of what is fair and reasonable in the circumstances.

If the proposed adjustments are likely to cause hardship, it is up to the person or organisation to show that they are unjustified.

The Federal Government can provide financial assistance for workplace adjustments for employees with disabilities. http://jobaccess.gov.au/content/employment-assistance-fund

Employers can be held legally responsible for acts of discrimination or harassment that occur in the workplace or in connection with a person’s employment. This is known as ‘vicarious liability.’

For example, employers can be held vicariously liable for discrimination and harassment that occurs at:

• employer-sponsored events, such as seminars, conferences and training workshops
• work-related social functions, such as Christmas parties
• business or field trips.

Example: An employee was sexually harassed by another employee in the early hours of the morning in a serviced apartment they were sharing while attending a work related conference. The employer was held to be legally responsible for the sexual harassment.

Employers can also be liable when computers, phones or tablets are used to harass a person, for example, by sending text messages, posting on social media sites or sending emails that have a connection to the workplace.

Employers can minimise their liability by demonstrating they have taken ‘all reasonable steps’ to prevent or avoid the discrimination or harassment.

Preventive measures can include implementing workplace policies that address discrimination and harassment, including sexual harassment, providing training on discrimination and harassment to staff and managers, and establishing an internal complaint handling process.

Vision impairment can be covered by the Disability Discrimination Act.

The Act makes it against the law to discriminate against a person because of their disability in many areas of public life including in employment, education, getting or using services, renting or buying a house or unit and accessing public places. There are some limited exceptions and exemptions.

Example: A company does not provide its customers with invoices in a format that is accessible to people with vision impairment. This could be disability discrimination.

Employers have a responsibility to make reasonable adjustments to the workplace so that an employee with a disability can do their job effectively. Failure to do so may amount to discrimination.

There are a range of adjustments that can be made in the workplace to accommodate a person with a vision impairment. These include:

• modifying workspace by taking away clutter or improving lighting
• providing written information in alternative accessible formats, such as accessible Word documents, Braille or audio
• providing screen reading software or other vision aids such as hand held magnifiers.

The Federal Government can provide financial assistance for workplace adjustments for employees with disabilities. Access Job Access' Employment Assistance Fund information here.

It is not unlawful to discriminate against an employee on the basis of disabilities if the person cannot perform the inherent requirements of a job after reasonable adjustments have been made.

An employer can be liable for acts of discrimination or harassment, including sexual harassment, that occur in the workplace or in connection with a person’s employment. This is called ‘vicarious liability’.

It means that employers can be liable for acts by their employees that occur at work-related events, such as conferences, training workshops, business trips and work-related social events, such as Christmas parties.

Example: An employee was sexually harassed by another employee in the early hours of the morning in a serviced apartment they were sharing while attending a work related conference. A court held the employer legally responsible for the sexual harassment.

Employers can minimise their liability for acts of discrimination and harassment that occur at work-related events by taking all reasonable steps to prevent discrimination and harassment from occurring in these situations.

Preventive measures can include, among others, implementing workplace policies that address discrimination and harassment, including sexual harassment, providing training on discrimination and harassment to staff and managers, and establishing an internal complaint handling process.

In December 2022, a new positive duty on employers and persons conducting a business or undertaking (PCBUs) to eliminate workplace sex discrimination and harassment commenced. See the Respect@Work website for further information.

Offering employees flexible working hours, like other flexible work arrangements, is a way to create a productive workplace that is free of discrimination.

In some circumstances, a rule that requires all employees to work certain hours can be indirect discrimination as it may have an unfair effect on some groups of people, such as people with disabilities, women who are pregnant or breastfeeding, or people of a particular age.

Offering employees flexible working hours can involve:

• changing start or finish times, for example, by allowing an employee to start later or finish earlier in the day
• offering split shifts
• offering employee breaks during shifts.

Example: An employer allowed staff to choose to start and finish work later in the day. This ensured that a staff member who took medication that made him drowsy in the mornings was not disadvantaged.

Offering flexible working hours is a way that employers can make a reasonable adjustment in the workplace to allow a person with a disability to do their job.

Under the Fair Work Act 2009 (Cth), requests for flexible work arrangements must be seriously considered by the employer and can only be refused on reasonable business grounds