Discrimination within the workplace is treating, or proposing to treat, someone unfavourably based on a personal characteristic that is protected by law. Employees are protected at all stages of employment, from the initial recruitment process and offer of employment, to training and promotion opportunities and dismissal.
The Equal Opportunity Act 2010 sets out personal characteristics that are protected by law. Employers are not allowed to discriminate based on the following attributes:
• skin colour
• sexual orientation
• physical or mental disability
• marital status
• family or carer’s responsibilities
• political opinion
• national extraction or social origin.
An adverse action includes an action that is considered unlawful if it is taken for discriminatory reasons. The Fair Work Act 2009 describes a number of adverse actions and employers could be found guilty of committing an adverse action if they do, threaten to do, or organise any of the following:
• dismiss an employee
• injure an employee in their employment
• alter an employee’s position to their detriment
• discriminate between one employee and other employees
• refuse to employ a prospective employee
• discriminate against a prospective employee within the terms and conditions in the offer of employment.
Not all adverse action is discrimination – for example, if a job requires the employee to hold an MC licence and they only hold an HR licence, it would not be discriminatory to refuse to employ them. Equally, it is not discriminatory to take action due to poor performance; what would be discriminatory is setting performance targets that are not achievable due to a protected attribute.
Under federal anti-discrimination law, employers may be legally responsible for discrimination and harassment that occurs in the workplace or in connection with a person’s employment, unless it can be shown that ‘all reasonable steps’ were taken to reduce the liability. The term ‘all reasonable steps’ is not defined; what’s reasonable for a large organisation may not be the same as that of a small business. Instead, it’s worked out on a case-by-case basis.
Discrimination does not have to be deliberate and intentional. Employers can discriminate indirectly by applying conditions or rules that disadvantage one group more than another.
This kind of discrimination could involve:
• selecting a particular employee for redundancy
• paying someone less than another without good reason
• treating part-timers less favourably than full-time workers.
Line managers can protect their team members, themselves and their organisation from discrimination by:
• understanding discrimination in workplace legislation
• working through everyday scenarios to build up case examples of situations with potential for discrimination
• holding team meetings on the issue and discussing work scenarios, so everyone is aware of discrimination, how it can arise and their responsibilities to avoid it.
Workplace discrimination issues can be complex and emotional for both employers and employees. Understanding what constitutes discrimination, harassment, bullying or a hostile workplace is an important first step in creating effective policies to deal with inappropriate conduct and build a reputation as an equal opportunity employer.
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