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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Employer fined $125,000 for ‘hurt and humiliation’ of disabled worker

Discrimination in the workplace

  In Bristow v Sonny’s Restaurant & Bar & Ors (2019), an employer was ordered to pay around $125,000 for the “extremely hurtful” way it treated a worker suffering with chronic regional pain syndrome and fibromyalgia. Out of that penalty, […]

By Portner Press on November 26th, 2019

Your questions answered: Do we have to provide ergonomic support in a 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 […]

By Portner Press on November 21st, 2019

Your questions answered: Can pre-employment medicals be 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 September 27th, 2019

Discrimination against pregnant worker costs employer $40K

Discrimination in the workplace

An employer that refused to redeploy or provide unpaid leave to a pregnant worker has been ordered to pay her nearly $40,000 compensation in an adverse action claim. In Leutton v Sheralee Hotels Pty Ltd Trading As Imperial Tavern & […]

By Portner Press on September 24th, 2019

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

Discrimination in the workplace

Q We recently hired an employee who, on the pre-employment medical condition questionnaire, indicated they had no relevant pre-existing medical conditions. Subsequent events indicate that there are, in relation to the capacity of the person to perform the inherent requirements […]

By Portner Press on September 10th, 2019

Your questions answered: How do we train staff to avoid making faux pas?

Discrimination in the workplace

Q Do you have any information, fact sheets or training resources that can be used to inform staff about appropriateness of conversations with customers in the workplace, so to ensure not to offend? These would be around the areas of […]

By Portner Press on September 3rd, 2019

Your questions answered: Is non-disclosure of a pre-existing injury grounds for dismissal?

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 […]

By Portner Press on August 2nd, 2019

Your questions answered: Is non-disclosure of a pre-existing injury grounds for dismissal?

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 the employee’s employment on […]

By Portner Press on July 30th, 2019

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