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.


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.


Top stories for Discrimination in the workplace


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

Your questions answered: Must we provide ergonomic back support in our worker’s company car?

Discrimination in the workplace

Q If a sales representative who spends most of his day in a company car has a neck injury that makes sitting in the car for long periods uncomfortable, is the employer responsible for providing an ergonomic back support to make the […]

By Portner Press on May 2nd, 2019

Your questions answered: Do job candidates have to disclose medical issues?

Discrimination in the workplace

Q: Is a job candidate required to disclose medical issues during the recruitment process?

By Portner Press on February 25th, 2019

Your questions answered: Can we dismiss a worker who is unhealthy and unfit for work?

Discrimination in the workplace

Q: We have exhausted all avenues with helping our worker who has ongoing health issues (not work-related), but the worker is taking more and more time off work. What is fair dismissal when someone is unfit for work?

By Portner Press on February 15th, 2019

Why you should recruit mature-age workers

Discrimination in the workplace

Employers are beginning to embrace older workers, reaping the economic and other rewards that their wisdom and resilience can bring to an organisation.

By Portner Press on February 12th, 2019

Confronting obesity: Discrimination or a health and safety duty?

Discrimination in the workplace

The Federal Government has considered a proposal by GLOBE to measure the height and weight of primary school children every two years in an effort to tackle obesity in Australia.

By Portner Press on July 31st, 2018

5 myths about mature-age workers dispelled

Discrimination in the workplace

Mature-age people can bring indispensable skills, knowledge and awareness to an organisation that a lot of younger workers may not be able to offer.

By Portner Press on July 26th, 2018