Workplace Discrimination

Workplace discrimination occurs when a person, or a group of people, is treated less favourably than another person or group because of their background or particular personal characteristics. 

Discrimination can occur at any stage of employment – from the interview and hiring process, through to being fired. 

No matter when it occurs, discrimination is illegal. 

Commonwealth and state discrimination laws protect people from discrimination on the basis of their: 

• Race, including colour, national or ethnic origin or immigrant status 

• Sex, pregnancy or marital status and breastfeeding 

• Status as a parent or carer 

• Age 

• Disability 

• Religion  

• Sexual orientation, gender identity and intersex status 

• Political beliefs or trade union or industrial activity 

• Experience of family and domestic violence 

New protections for Family and Domestic Violence victims

This last point above is a new protection which came into effect from 15 December 2023, thanks to new union-won laws. 

The Fair Work Legislation Amendment (Closing Loopholes) Act 2023 amended the Fair Work Act 2009 and includes a new protection for employees and prospective employees by recognising subjection to family and domestic violence as a protected attribute within the Fair Work Act’s anti-discrimination provisions. 

This means workers cannot be discriminated against because they have been, or are being, subjected to family and domestic violence. Modern awards and enterprise agreements are also not able to discriminate against workers on this basis. 

These amendments support the union-won entitlement to 10 days paid family and domestic violence leave which came into effect from February 2023. 

Forms of discrimination

In the workplace, being treated unfairly because of your race, age or other personal characteristics or attributes can mean a number of things. Some common examples include: 

• Choosing not to hire you 

• Treating you differently to other employees 

• Bullying or harassing you 

• Unfairly favouring someone else 

• Unfairly changing your role or responsibilities 

• Demoting or firing you 

Your employer can take actions against you without being discriminatory; for example, performance management or disciplinary action. But if these actions happen because of a personal characteristic or attribute, it may be discrimination. Your employer should treat you the same as they would treat any other employee. 

Direct and indirect discrimination

Direct discrimination occurs when someone choses to treat you unfairly because of one of the personal characteristics listed above. This can often happen because an employer is prejudiced and believes that one of your personal characteristics or attributes will make you less suitable for the job. For example, choosing not to hire someone for a role because they are a woman. 

Indirect discrimination occurs when your employer imposes rules or conditions that unfairly disadvantage you because of one of the personal traits listed above. For example, requiring everyone to work late in exchange for time off the following week may unfairly discriminate against anyone who has caring responsibilities like picking up kids from school. 

Exceptions 

There are some instances in which discrimination is reasonable. Sometimes it is even necessary to ensure that everyone is given equal opportunities and that a workplace is safe. Below is an explanation of these exceptions under discrimination law. 

Religious institutions

Churches, religious schools and other institutions that are run in accordance with religious principles have certain exemptions from discrimination law. This means that unlike other institutions or employers, they may be able to discriminate against you because of your religion, sex, gender, marital status, sexuality or parental status if it is reasonably necessary for prescribed religious reasons. In practice, exactly what counts as ‘reasonably necessary’ discrimination can be hard to determine.  

Inherent requirements

Inherent requirements are the essential duties of a job. In some circumstances, it is not unlawful to refuse to employ a person because of their age or disability, if they are unable to perform the inherent requirements of the job. 

The inherent requirements will depend on what the job is. For example, to be at least a certain height to work as a flight attendant. 

It should not be assumed that someone cannot meet the requirements of a job. Instead, people with disabilities or health conditions must be assessed on their current ability to do the job. An employer must also consider if reasonable adjustments could be made to help a person with disabilities to do the job. 

Health and safety

If you are pregnant, have a disability or if there is another reason that performing a certain task would put your health and safety at risk, then it is treating you differently may not be prohibited. For example – if you are pregnant, an employer may choose not to hire you for a physically demanding job. 

While this may sound simple, in practice it can mean that people with disabilities and pregnant women are treated unfairly which can often make finding a job in the first place a difficult task. 

Special measures

Special measures provide greater equality by supporting groups who face entrenched discrimination so they can have similar access to opportunities as others. Special measures do not require equal treatment – rather they compel unequal, more favourable treatment for some groups of people who face discrimination (for example, women, First Nations people, parents). Gender quotas is one example.   

Unions campaigned for and recently won the right for workers and their unions to bargain for special measures to achieve equality in collective agreements.  

What can I do if I’m being unlawfully discriminated against?

Workplace discrimination is a serious issue. There are several bodies that deal with workplace discrimination and employers, if found guilty, can face serious consequences. Where you live and what kind of discrimination you are experiencing will determine who is best suited to help you.

If discrimination cannot be resolved at the workplace level, you may be able to file a complaint with the Fair Work Commission, Australian Human Rights Commission or your state equal opportunity, human rights, or anti-discrimination commission. Your union can provide you with assistance and representation throughout this process.

Already a union member?

Reach out to your union for more specific information about how you and your workmates can stay protected from workplace discrimination. 

Not yet a member of your union?

Joining your union will ensure you’re getting the protections and conditions that you’re entitled to.