Workplace discrimination is an issue that no one should experience, yet everyone should be aware of. Regardless of how high your position might be or how welcoming your employer seems, knowing how to spot unfair treatment is a skill all workers should develop.
Unfortunately, learning how to distinguish and deal with these situations isn’t always easy. Here is everything you need to know to stay protected at your place of employment.
Discrimination at work is when a person is treated less favourably than another person in the same or similar circumstances on the ground of a personal characteristic. This can include:
- Racism: Discriminating against a person because of the racial or ethnic group they belong to.
- Gender inequality: Discriminating against a person because of their gender.
- Age discrimination: Decimating against a person because of their age.
- Disability discrimination: Discriminating against a person because of their disability.
- Unfair treatment in the workplace: Treating anyone unfairly in a professional environment because of their protected characteristics.
Still, not every action may be considered an unfair treatment in the workplace. For instance, an employee might be overlooked for a promotion due to problematic work ethics, lower output quality, or another concern—all things that do not (and should not) involve their personal characteristics
In Australia, harassment is a form of illegal discrimination under federal and state laws. Harassment can take many forms, including unwelcome advances or requests for sexual favors, unwanted physical contact, verbal abuse, and creating a hostile work environment. Harassment can be perpetrated by coworkers, supervisors, clients, or customers, and it is a violation of an individual’s dignity and right to work in a safe and respectful environment. In Australia, the Sex Discrimination Act 1984, Disability Discrimination Act 1992, and Racial Discrimination Act 1975 all have provisions against harassment in the workplace by various “workplace participants.” Victims of harassment may have legal options available to them, including filing a complaint with their employer, seeking assistance from a union or industry body, or pursuing legal action through a discrimination or human rights commission.
What is workplace bullying？
According to the Fair Work Amendment Act 2013, workplace bullying is characterized as repeated and unreasonable conduct by an individual towards a worker that poses a risk to health and safety. Bullying can encompass various behaviors, from direct verbal or physical assault to more subtle forms of psychological abuse including:
- Exclusion or isolation
- Psychological harassment
- Assigning irrelevant tasks
- Giving impossible jobs
- Purposely changing work schedules to inconvenience specific employees
- Withholding critical information that may undermine job performance.
Employees can face three main types of discrimination in their working environment. Some of these can be difficult to identify, so staying informed and updated regarding their definitions is important.
These types include
- Direct discrimination: This can include making derogatory remarks about a person’s background or appearance, giving someone less pay for doing the same job as another employee, and other obvious unfair actions.
- Indirect discrimination: This is when an employer applies policies and practices that seem fair but have an adverse effect on certain people in particular circumstances. This could be something like incorporating new working arrangements that only benefit employees who aren’t responsible for childcare (and are more likely to be men).
- Victimization discrimination: This is where an employer treats a person differently because they have made a complaint about discrimination or harassment. It could be something as simple as being called into HR to discuss why you’ve taken so many days off work, which might seem fair until you know that no one else has been called in for similar reasons.
Australia’s anti-workplace discrimination act is actually a collection of several laws that protect employees against unfair treatment.
These main laws are the Sex Discrimination Act 1984; Australian Human Rights Commission Act 1986; Racial Discrimination Act 1975; Disability Discrimination Act 1992, and Age Employment Discrimination Act 2004.
If you have been discriminated against, the law may require your employer to pay you compensation.
For corporations, the maximum penalty for a violation of the unlawful discrimination protections is $66,600 per violation; for individuals, it is $13,320.
In addition, the Federal Court or Federal Circuit and Family Court of Australia—once it determines that a person has discriminated against another according to the FW Act—can make any order that is appropriate, including reinstatement and/or compensation, as well as orders for injunctions.
The Fair Work Act 2009 is the main set of laws that govern employment rights and workplace relations in Australia. The Act is designed to protect employees from unfair treatment by their employers while also ensuring employers aren’t prevented from running their businesses as they see fit.
The law protects people from discrimination based on:
- Gender identity or sexual orientation
- Race, colour, descent, or national or ethnic origin
- Religion, political opinion, and marital status
Age discrimination in Australia has been illegal since the Age Discrimination Act of 2004, which aimed to protect people from being treated unfairly due to their age.
In this context, it means treating someone less favourably than another person because they’re older than you or younger than you. It can also mean not hiring someone because you assume they’re too old or too young for your business needs.
Federal anti-discrimination law does not prohibit discrimination based solely on religion. However, in some cases, people have been covered by the term ‘ethnic origin’ in relation to their religion under the Racial Discrimination Act—which is illegal.
Adverse action is a term used to describe any action that is taken by an employer or a prospective employer, which has the effect of disadvantaging the person who is the subject of the action.
For example, an employer may be guilty of adverse action if they terminate an employee after finding out that they are pregnant, all because they did not want to process their parental leave. In this case, it could be said that their decision to terminate employment was ‘adverse’ and discriminatory because they were solely terminated due to their pregnancy—which is prohibited under the FW Act.
Now that we’ve covered some of the main definitions regarding workplace discrimination, it’s time to present a few examples you might see in the real world. Remember: Some of these may be direct or indirect, or they may happen to a colleague instead of you.
Keep an eye out for these and other unfair behaviors to ensure your workplace is as welcoming as possible.
- Creating policies that control what employees should look like and wear (these may hold female workers to higher standards than male ones).
- Requiring employees to wear a specific hairstyle or follow a facial hair requirement (this can alienate or disproportionately impact those from certain cultural groups/ethnicities).
- Creating a height requirement for all applicants (this could exclude women and some members of certain ethnic groups, as they are shorter than men on average).
- Failure to make reasonable accommodations for a person with a disability, such as wheelchair ramps in entryways.
- Denying a job applicant who has a physical or mental impairment but granting it to a non-disabled applicant who may be less qualified.
- Failure to provide disabled employees with the same workplace opportunities compared to their non-disabled coworkers.
- Exclusively granting new projects and opportunities to younger employees.
- Terminating older employees at a disproportionately larger rate compared to younger employees.
- Failure to promote older employees and having few qualified reasons for doing so.
- Exclusively assigning minority employees to lower-paying, dead-end jobs and/or opportunities.
- Terminating or demoting minority employees at a disproportionately larger rate compared to white employees.
- Failure to promote qualified minorities for senior positions and instead promoting less qualified white candidates.
- Paying female employees less than male employees for accomplishing the same amount of work.
- Firing or demoting female employees due to their pregnancy or childcare needs.
- Excluding female employees from meetings or business events that their male colleagues were invited to attend.
- Bullying or harassing a colleague due to their mental health, such as depression or anxiety.
- Assuming that an employee will be unable to complete a certain project or task because of their mental health, and therefore excluding them from the opportunity.
- Forcing an employee to resign on account of their mental health needs.
- Making assumptions about an employee’s ability to perform certain tasks because of their pregnancy.
- Treating an employee differently based on the mere perception of what they can and cannot do because of their pregnancy.
- Refusing to hire a job applicant because they are pregnant or planning to be pregnant sometime after their starting date.
Do you believe you’ve been discriminated against in your workplace? Don’t worry. You don’t have to face this issue alone. With a qualified professional at your side, you can create a compelling case that ensures justice is achieved.
Still, choosing a workplace discrimination lawyer in Australia can be challenging. Work Rights Australia (WRA) is not a law firm. We are one of the nation’s leading employee advocacy and support services. WRA provides a holistic and one-stop-shop approach for employment disputes, and we only represent employees.
You want to make sure you find someone with the expertise and confidence to handle your case. Ask yourself these questions:
● Has an independent assessment of your case been provided?
● Can your dispute be resolved without the stress and cost of going to court?
● Does your case involve litigation that requires a legal professional?
● Are you being referred to a lawyer specializing in workplace discrimination?
● What are the costs? Do you know upfront? Are you getting value for money?
WRA has a team of advocacy, HR, and workplace relations consultants and a panel of legal professionals ready for engagement – if your matter can’t be mediated/resolved by private negotiation or conciliation in the Fair Work or Human Rights Commission.
Eager to get started? Complete our online intake form today