Discrimination is treating a person less favourably than another person or group because of their race, colour, national origin, gender, disability, religion, or some other attribute or characteristic as specified under anti-discrimination or human rights legislation.

There are two types of discrimination – direct and indirect.

Direct discrimination is treating a person with a prescribed attribute differently than a person without that attribute. You will directly discriminate against an employee if the way you treat them is because of an attribute they have, or a characteristic that people with that attribute generally have (even if that is not the only reason for the treatment).

If you treat an employee with an attribute less favourably than you treat or would treat another employee without that attribute in the same circumstances, that’s direct discrimination.

Indirect discrimination is imposing a requirement, condition or practice on someone that a person with a certain attribute does not or cannot comply with.

You will indirectly discriminate against an employee on the grounds of an attribute they have if you impose, or intend to impose, a workplace practice or requirement that is unreasonable in the circumstances and is likely to disadvantage people with the same attribute as the employee.

To mitigate the risk of discrimination occurring in your workplace, your business should start by having a code of conduct specifying the rules and expectations of the business in broad terms, followed by workplace behaviour policies that address discrimination and your complaints procedure.

Then you should advise your employees of the disciplinary actions you may take against anyone found to be breaching your code of conduct or workplace behaviour policies.

You can choose to adopt different policies for different types of conduct, e.g. an anti-discrimination policy and a sexual harassment policy, or use a single workplace behaviour policy that addresses all types of offensive behaviour, including discrimination, harassment and bullying. Just ensure that each policy you implement includes all the necessary components.

Workers with a disability

You cannot treat a worker unfairly because they have a disability or impairment. Disability includes any behaviour that is also a symptom or manifestation of the disability, e.g. someone slurring his words because he suffers from cerebral palsy.

Under the Disability Discrimination Act 1995 (Cth), you must make reasonable adjustments to accommodate workers with disabilities. This may include adopting some supportive measures, e.g. improved workplace design, to enable workers to fulfil the inherent requirements of their role. Inherent requirements of a role are the essential activities that a job involves. Inherent requirements do not involve peripheral or nonessential tasks. If an inherent requirement of a role is removed, it would be a different role.

Victimisation

If one of your workers makes a complaint of discrimination, make sure that you take the complaint seriously and that you, or others such as the person being complained about, do not victimise the worker making the complaint.

Victimisation occurs when a person treats a worker unfairly because the worker made a complaint or supported another person making a complaint regarding bullying, harassment or discrimination.

Victimisation is conduct that makes a worker feel uncomfortable, isolated, unwelcome, intimidated or insecure.

Victimisation is unlawful and is taken very seriously by the courts.

If one of your workers makes a successful workplace discrimination claim, your organisation may be held liable, even if you did not engage in the discrimination. This is known as vicarious liability.

Vicarious liability is the responsibility an employer has for the actions of its workers during work hours or in other work-related circumstances. If these actions are found to be unlawful, both the employer and the worker may be held responsible.

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Top stories for Discrimination in the workplace

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Claustrophobic staff can be told to work in confined spaces: FWC

Discrimination in the workplace

A worker who developed severe claustrophobia after becoming trapped in an elevator can be required to continue working in confined spaces, the Fair Work Commission (FWC) has ruled. In 2002, a trade assistant for KONE Elevators Pty Ltd became trapped […]

By Portner Press on July 11th, 2019

Manager sacked for safety tip-off wins $470K adverse action claim

Discrimination in the workplace

Even though regulators say they won’t reveal the source of an anonymous complaint, does that really provide any protection? When a general manager at a glass manufacturing company became concerned about the new owners’ dangerous work practices, including one event […]

By Portner Press on June 28th, 2019

Employer must pay $75,000 in settlement to racially abused worker

Discrimination in the workplace

Imagine your workers are taunting an African worker for being black. They make monkey noises at him, leave bananas on his desk, tell him he isn’t Australian, suggest he is part of an ‘African gang’ and a terrorist and leave […]

By Portner Press on June 7th, 2019

Your questions answered: Is asking workers about infectious or communicable diseases compliant with anti-discrimination laws?

Discrimination in the workplace

Q I am writing a policy and procedure for the control of infectious and communicable diseases in a community service organisation. Service users range from children to the aged and frail. The general approach to control is to assume the […]

By Portner Press on May 31st, 2019

Your questions answered: How can we avoid Hepatitis C discrimination?

Discrimination in the workplace

Q Our workplace based in the Northern Territory has a designated first aid officer who has Hepatitis C. The employee works at a location where first aid may at times need to be administered to members of the public. Due […]

By Portner Press on May 30th, 2019

Your questions answered: Are pre-employment medical assessments discriminatory?

Discrimination in the workplace

Q My sales and distribution business operates within the metals industry. We are considering pre-employment medicals for new warehouse/delivery driver employees. Would you please advise what legal requirements, if any, we need to consider? Is it discrimination to request a […]

By Portner Press on May 21st, 2019

New whistleblower laws in force NOW

Discrimination in the workplace

The changes to whistleblower laws in Australia may also have an impact on work health and safety obligations to protect the whistleblowers from bullying or victimisation if their identity becomes known. The Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019 […]

By Michael Selinger on May 17th, 2019

Labour hire company and contractor face court over age discrimination

Discrimination in the workplace

The Australian Building and Construction Commission (ABCC) has caught labour hire company Corestaff WA and its client Gumala Enterprises committing an ultimate recruitment no-no. ABCC has launched Federal Court proceedings against the companies, alleging that they discriminated against a worker […]

By Portner Press on May 7th, 2019

Your questions answered: Is hiring someone with a pre-existing injury risky?

Discrimination in the workplace

Q Can you please assist by outlining some recommendations when requesting a ‘fitness to work’ for an applicant who has passed the interview selection within our recruitment process? Are we putting our organisation at risk of a possible future workers’ compensation claim by […]

By Portner Press on May 7th, 2019

Your questions answered: Can we ask job applicants to disclose WorkCover claims?

Discrimination in the workplace

In an important decision in March, the NSW District Court found a property manager of a building guilty of breaching its primary duty of care to ensure safety by failing to arrange or verify that a major 10-year inspection of […]

By Portner Press on May 3rd, 2019