Everyone has the right to work with dignity, in a discrimination-free workplace.
At Gordon Legal, not only do we have decades of experience in protecting human rights and fighting against discrimination at work, but, as a firm, we are committed to promoting fairness and dignity at work.
We know that it takes courage to speak up. We understand the emotional and professional pressure of doing something about a workplace problem. We know that, sometimes, discrimination is hard to identify, and harder to prove.
But the first step is knowing what your rights are. This article sets out some simple guiding principles to help you, so that, whether or not you decide to take action, you can make an informed decision.
What are the relevant laws?
Where discrimination has occurred, there are several laws which may apply. Sometimes, they may overlap. Finding the best law for your case is important. If you choose the wrong law, it may be very difficult, or impossible, to swap over to another one.
The main Australia-wide laws (also known as Commonwealth laws) are the:
- Age Discrimination Act 2004
- Australian Human Rights Commission Act 1986
- Disability Discrimination Act 1992
- Racial Discrimination Act 1975
- Sex Discrimination Act 1984.
In addition, each State and Territory has laws covering discrimination:
- Australian Capital Territory – Discrimination Act 1991
- New South Wales – Anti-Discrimination Act 1977
- Northern Territory – Anti-Discrimination Act 1996
- Queensland – Anti-Discrimination Act 1991
- South Australia – Equal Opportunity Act 1984
- Tasmania – Anti-Discrimination Act 1998
- Victoria – Equal Opportunity Act 2010
- Western Australia – Equal Opportunity Act 1984.
Who is Protected?
Not everyone is protected under anti-discrimination laws. First, you must fit within a protected category. However, the list of protected categories changes depending on where the offending conduct occurred. For example, everyone in Australia is protected from discrimination based on race, sex, age and disability.
But protection from discrimination based on other characteristics, such as religion, or irrelevant criminal activity, is available only in some States and Territories.
The Australian Human Rights Commission has a useful guide to discrimination laws, which sets out who is protected under different laws https://www.humanrights.gov.au/our-work/employers/quick-guide-australian-discrimination-laws.
Because the laws change from time to time, it is important to check the latest information about who is protected. For example, since the Australian Human Rights Commission published its guide, a new ground of expunged homosexual conviction was inserted into the Victorian Equal Opportunity Act 2010.
What is discrimination?
Once you have established that you fit within a protected category, the next step is to work out whether you have suffered ‘discrimination’.
Discrimination may be direct or indirect, and may also occur where reasonable adjustments are not made for people with disabilities, or (in some cases) where reasonable accommodation is not made for a parent or carer.
- There are various legal definitions of direct discrimination, which broadly involves treating a person or group with a protected attribute or characteristic unfavourably, or less favourably, because of that attribute.
EXAMPLE: Refusing to employ people from a certain ethnic background would be direct discrimination based on race.
- However, even if everyone is treated identically, it is still possible for some people to suffer indirect discrimination. There are various legal definitions of indirect discrimination, which broadly involves the imposition of an unreasonable requirement, condition or practice, which is likely to disadvantage people in a protected category. Indirect discrimination can be the result of the interaction of decisions, actions, regulations, policies, practices, social attitudes, and systems.
EXAMPLE: an employer requiring employees to work without any head covering would discriminate against people from certain religious backgrounds, who wear head coverings. If working without a head covering is not crucial to the work, it is an unreasonable requirement, condition or practice, that is likely to disadvantage people in a protected category, and could therefore be unlawful discrimination.
- If a person with a disability requires adjustments in order to perform the genuine and reasonable or inherent requirements of employment, an employer must make those adjustments, provided they are reasonable. The key issue will be whether the adjustments are ‘reasonable’ or not and whether, even after the adjustment is, made, the employee could still not adequately perform the genuine and reasonable or inherent requirements of the employment
- In some cases, discrimination may also occur where an employer unreasonably refuses to accommodate the responsibilities of a parent or carer. Again, in deciding whether this type of discrimination has occurred, all relevant facts and circumstances will be considered.
It is important to note that it does not matter if there was no intention to discriminate. What one person considers a joke, or a throwaway line, may be hurtful to another.
Discrimination can occur at work and at work-related activities, including at work-related functions, even if they are held away from the workplace, and via social media.
It is also against the law to victimise someone (by subjecting or threatening to subject them to disadvantage, detriment or injury) because they have:
a) made an allegation or complaint under anti-discrimination laws or indicated that they may do so;
b) supported someone who has made such a complaint or another party to a proceeding under anti-discrimination laws; or
c) refused to engage in conduct which would offend anti-discrimination laws.
Adverse action under the Fair Work Act 2009 (Cth)
Some types of discrimination may also be adverse action under the Fair Work Act 2009 (Cth), which contains protections against work-related “adverse action”, on the basis of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
The Fair Work Act also contains protections against“adverse action” because of a person’s industrial activity, or the exercise of workplace rights, or to prevent a person exercising a workplace right.
If there is an overlap between adverse action and conduct prohibited under anti-discrimination laws, it will be important to work out which law best meets your needs.
How do I take action?
Because so many different laws may be relevant to the same set of facts in a case of discrimination, the process to be followed will depend on the law which is used. Sometimes, a complaint must go to a preliminary body for conciliation, before it can go to a hearing, but this is not always the process. For example, in Victoria, a person may take a matter directly to the Victorian Civil and Administrative Tribunal.
Some cases are heard in courts, such as the Federal Court, but others are heard in tribunals, such as the Victorian Civil and Administrative Tribunal or the NSW Civil and Administrative Tribunal.
Some practical advice:
At Gordon Legal, we do understand that it is sometimes difficult to take the plunge and make a complaint of discrimination, sexual harassment or similar offending conduct. Making a complaint is a very personal decision, which may be affected by a number of factors, such as emotional anxiety, fear of retaliation or even loss of a job.
However, there are some simple practical things you can do, which may help if, one day, you do decide to take action.
- Make notes. Whether or not you ultimately decide to take action, you should make clear notes of any troubling incidents, including the date, time and place where they occurred and the names of anyone who was present. Make the notes on the same day, or as close as possible to the day on which the incident occurred, while it is still fresh in your memory. You may never need to use the notes, but if you do, they will be a useful contemporaneous record.
- Keep copies. If there are any documents which may help to prove that offending conduct occurred, keep copies of them in a safe place. One day, these documents may be crucial.
- Look after your health. If the offending conduct is making you feel anxious or stressed, consult your doctor, explain what has been happening and obtain advice about how to care for your health. In some cases, you may be able to make a claim under workers compensation laws.
Please feel free to get in touch with us here at Gordon Legal if you need further advice about potential discrimination you have suffered and what you might be able to do about that.