Workplace discrimination occurs when an employee or group of employees are treated differently, unfavourably or unfairly in response to background or certain ‘protected’ personal attributes. Protected attributes differ slightly amongst States and Territories but are defined and derive from Federal Discrimination legislation.
In accordance with Discrimination Law employees cannot be discriminated against based upon protected attributes of:
- Race, colour, national or ethnic origin, or immigrant status
- Political stance or opinion
- Sexual orientation
- Marital or intersex status
- Gender identity
- Pregnant condition or breastfeeding
- Family or care responsibilities
Discrimination in the workplace often occurs:
- Within the recruitment and new hire process when selecting new staff.
- In the position description and employment agreements as part of the terms, conditions and benefits.
- In the determination of staff to participate in upskilling or professional development/training opportunities.
- When choosing staff for transfer, promotion, redundancy, or dismissal.
Discrimination can be categorised as:
- Direct discrimination – specific to a protected attribute that sees an employee disadvantaged or treated unfairly. For example, age, religion, or disability.
- Indirect discrimination – the imposition of a workplace condition or practice that may indirectly disadvantage or compromise the values of an employee in relation to a protected attribute. For example, not having disability access to a workplace, as it potentially prevents employees with a disability from accessing or entering.
- Victimisation – the unfair treatment of an employee based upon efforts of identifying and making complaint of discriminatory behaviour in the workplace. For example, providing less favourable tasks and a disgruntled attitude towards a female employee for filing a report of gender discrimination within Company hiring processes.
Adverse action is the unlawful and discriminatory response of an employer because of a potential employee, current employees, or former employees’ action to exercise a workplace right. Within the workplace this is determined as any action by the employer that negatively effects or harms the employee, particularly if derived from the justification that the employee has done a disservice or as punishment.
When is it NOT unlawful discrimination?
In response to the Fair Work Act, an act is only classed as unlawful discrimination if in response to a protected attribute (as previously mentioned). If workplace response or behaviour can be identified as a reasonable response to employee performance or behaviour, it is not unlawful discrimination.
Repercussions and Penalties
All employers are responsible to ensure that employees and those that apply for positions are treated fairly in accordance with the Fair Work Act 2009 and anti-discrimination laws. The penalties for discriminatory adverse action can result in a maximum penalty of $66,600 for every corporation violation and $13,320 for every individual violation. The penalty can also include order for injunctions, reinstatement of the employee and/or compensation.
Assurance HR can assist businesses in maintaining discrimination free environments by reviewing and updating workplace policies, providing training and signage to increase staff awareness, and ensuring employer compliance of current legislative requirements.