As an employer, you need to understand your rights and responsibilities under human rights and anti-discrimination law. Putting effective anti-discrimination and anti-harassment policies and procedures in place can help you comply with legal requirements and ensure your workforce includes employees from a wide range of backgrounds.

Discrimination in the workplace

Unlawful workplace discrimination under the general protections in the Fair Work Act 2009 (FW Act) occurs when an employer takes adverse action against an employee or prospective employee because of one or more of the following attributes:

  • race
  • colour
  • sex
  • sexual orientation
  • age, physical or mental disability
  • marital status
  • family or carer’s responsibilities
  • pregnancy
  • religion
  • political opinion
  • national extraction, or
  • social origin.

On 6 December 2022, the Fair Work Amendment (Secure Jobs, Better Pay) Act 2022 received royal assent. Anti-discrimination protections were extended to include breastfeeding, gender identity, and intersex status.

However, simply treating someone differently is not necessarily unlawful discrimination. Some different treatments, such as general performance management, may not be an unlawful discrimination issue. Under the FW Act, an action is only considered adverse if it occurs due to one or more of the protected attributes (race, sex, age, disability, etc.). If this is not the basis of the action, it may not be considered unlawful discrimination.

Australian Business Lawyers & Advisors (ABLA) senior associate Sam Cahill said that if an employee makes a complaint of unlawful discrimination, the employer should seek to determine whether any unlawful discrimination has occurred, so that appropriate action can be taken.

“Before commencing an investigation, the employer should contact the complainant to confirm receipt of the complaint and advise on the steps that will be taken in response,” Mr Cahill said. 

“It will often be necessary to interview the complainant in order to obtain further details of the matters raised.”

The employer will then be able to adopt an investigation process that is appropriate in the circumstances, having regard to the nature of the complaint and the people involved.

Mr Cahill said that when responding to a complaint, it is important to keep in mind any organisational policy or procedure that deals with the handling of complaints. Such a policy/procedure may require the employer to take certain steps or adopt a particular process as part of the investigation.

“If a business can demonstrate that it took all reasonable steps to prevent unlawful discrimination within the business, the business may be able to avoid liability for unlawful discrimination committed by an employee,” Mr Cahill said. 

However, if a business does not have adequate policies and procedures in place, it is unlikely that the business will be able to establish that it took all reasonable steps to prevent unlawful discrimination. 

“In other words, if a business does not have adequate policies and procedures in place, the business will be at an increased risk of liability for any unlawful discrimination committed by its employees,” he said. 

It’s worth noting that Australia’s anti-discrimination laws also extend to the recruitment process.

In a 2021 case, the Federal Court of Australia found that a recruiter’s decision not to put forward a 70-year-old candidate was discriminatory and imposed a fine totalling $29,000. 

What can employers do?

  • Develop and implement a written policy that explains what unlawful discrimination is and states that unlawful discrimination is unacceptable.
  • Require employees and managers to undergo training on discrimination and the anti-discrimination policy.
  • Create a culture of inclusiveness and respect, ensuring that managers lead by example.
  • Ensure that any discrimination complaints are handled seriously and promptly, ensuring that unlawful discrimination (where it is found to have occurred) is met with appropriate disciplinary action.

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