PROHIBITION ON WORKPLACE DISCRIMINATION
In most jurisdictions in Australia, the law prohibits discrimination on a certain ground, being age, disability, race, sex, in a range of areas such as employment. The definition of employment may be extended to ‘work’ so that commission agents, contract workers and partnerships are subject to this rule.
Definition of Workplace Discrimination
Direct discrimination may involve ‘any act involving a distinction, exclusion, restriction or preference’ where the discriminator treats the aggrieved person less favourably than, ‘in circumstances that are the same or not materially different’, the discriminator would treat a person of a different sex, age, disability or race more favourably.
Indirect discrimination is also unlawful and occurs in one of the following circumstances:
- By imposing a condition or a requirement where, in the case of a racial discrimination, that condition or requirement cannot be complied with and it ‘has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent or national or ethics origin as the other person, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life’.
- By imposing a condition or a requirement where, in the case of various forms of disability and sex discrimination that “has, or is likely to have, the effect of disadvantage’.
In plain terms, indirect discrimination occurs where a condition or a requirements is imposed to cause a disadvantage to a particular group of people and is unreasonable in all of the circumstances.
At the federal level, it is prohibited to discriminate against age. This includes all adverse actions in employment or prospective employment. There may be an exemption where it is a requirement of the employment to be of a certain age group.
At the federal level, it is prohibited to discriminate against a disability. Disability is defined to include the following:
- total or partial loss of the person’s bodily or mental functions; or
- total or partial loss of a part of the body; or
- the presence in the body of organisms causing disease or illness; or
- the presence in the body of organisms capable of causing disease or illness; or
- the malfunction, malformation or disfigurement of a part of the person’s body; or
- a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or
- a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour;
- and includes a disability that:
- presently exists; or
- previously existed but no longer exists; or
- may exist in the future (including because of a genetic predisposition to that disability); or
- is imputed to a person.
The law may also recognise a disability that is not included in the above list.
Case law has shown that, in the case of a pregnancy, severe diagnosed morning sickness may amount to a disability.
At the federal level, it is prohibited to discriminate against a race.
The law makes it clear that the concept of race, in respect of which discrimination of employment is unlawful, extends to race, colour, or national or ethnic origin. This also extends to ‘descent’.
At the federal level, it is prohibited to discriminate against sex.
Such discrimination includes marital status, pregnancy or potential pregnancy, breastfeeding, family responsibilities, sexual orientation, gender identity and intersex status.
This definition extends to a characteristic that appertains generally or is imputed to persons of the sex of the aggrieved person.
Gender identity may include a gender-related identity, appearance or mannerisms or other gender-related characteristics of a person with or without regard to the persons’ designated sex at birth.
The law not only prohibits discrimination, but it also prohibits victimisation. Victimisation means subjecting someone to a detriment or threatening to subject someone to a detriment. For victimisation to be unlawful, the conduct must be engaged in because the person causing the detriment believes that the person has, or proposes to make, a complaint or has brought, or intends to being, proceedings against someone with powers or functions.
Liabilities of Employers
An employer may be vicariously liable for the conduct of his/her employees or agents unless the employer takes “all reasonable steps to prevent the employee or agent from doing those discriminatory acts.
If such claim is brought against an employer, the Court may consider where the employer has implemented a system for complaints and there are measurements for the investigation of those complaints that conducted in a secretive and discrete way without causing the complainant embarrassment or adverse effects.
Investigation of complaints
An employer must investigate all complaints lodged by an employee, an agent or a contractor by implementing an internal protocol. In the absence of such protocol, the employer is encouraged to engage external and independent investigators to investigate those complaints.