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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Your questions answered: What can we do if workers don’t disclose pre-existing medical conditions?

Discrimination in the workplace

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Discrimination in the workplace

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Discrimination in the workplace

Q Why does a failure of a prospective employee to disclose a pre-existing injury – that may impede the employee’s capacity to safely undertake their full range of duties – not enable an employer to terminate employment on the basis […]

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Discrimination in the workplace

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Discrimination in the workplace

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Discrimination in the workplace

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Discrimination in the workplace

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Discrimination in the workplace

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Discrimination in the workplace

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

Discrimination in the workplace

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