What is discrimination in the workplace?
Discrimination is treating someone unfairly because they belong to a particular group of people.
Harassment can also be a form of discrimination. Harassment is behaviour that is not wanted, offends, humiliates or intimidates a person.
You have a legal right to work in a workplace free from discrimination and harassment, whether you are a permanent, full-time, part-time or casual employee. If you have experienced discrimination, it is a good idea to seek advice on your rights and how to handle the situation as soon as possible.
Unlawful Discrimination in NSW
Sex discrimination – when you are treated unfairly or harassed because of your gender. Sex discrimination may also occur if you are treated unfairly because you are pregnant or breastfeeding, or because someone thinks you are pregnant or might become pregnant in the future.
Race discrimination – unfair treatment because of your race, skin colour, ethnic background, ethno-religious background, or nationality.
Age discrimination – when you are treated unfairly because of your age, including by being subject to a compulsory retirement age.
Marital status discrimination – unfair treatment because of your marital status, for example, because you are single, married, or in a de facto relationship.
Homosexual or lesbian discrimination– when you are treated unfairly because you are gay or someone thinks you are gay.
Disability discrimination – unfair treatment because you have a disability or someone thinks you have a disability. Disability includes physical, intellectual and psychiatric disabilities, learning and emotional disorders and having a disease-causing condition (such as HIV).
Transgender (transsexuality) discrimination – when you are treated unfairly because you are transgender or others think you are. You are considered transgender if you seek to live as a member of the opposite gender (sex) to your birth gender.
Carers’ discrimination – unfair treatment because you care for or support a child, immediate family member, or another adult of whom you have legal guardianship.
Discrimination on the basis of your relationships or associations – when you are treated unfairly because of the sex, race, age, marital status, disability, homosexuality, or transgender status (transsexuality) of one of your relatives, friends or work colleagues.
Vilification on the grounds of race, homosexuality, transgender status, or HIV/AIDS status – vilification means any public act that could incite hatred, serious contempt or severe ridicule against a person or people.
You can lodge your complaint directly with the Anti-Discrimination Board of NSW (or equivalent in other states) or the Australian Human Rights Commission (AHRC). The types of complaints which can be made to each body are slightly different, so it is a good idea to check that you are dealing with the right body before you make your complaint.
Complaints need to be made within 12 monthsof the discrimination happening.
The Anti-Discrimination Board of NSW and AHRC have the power to investigate complaints of discrimination. If it appears that there has been unlawful behaviour, then they may try to conciliate the complaint. This means that they attempt to help the parties to agree to a private settlement of the complaint. Up to half of all discrimination complaints are resolved by conciliation at this stage.
You can usually have either a support person or a lawyer present at the conciliation conference.
The types of outcomes you might ask for in conciliation include:
- an apology;
- changing the practices at the workplace; and/or
If a resolution is not reached at conciliation, the matter may go to a hearing for a decision.
A man of Lebanese/ Armenian origin was called an ‘Arab’ and a ‘bomb thrower’ at work. He was sent an email about Muslim women which was offensive to him. After he made an internal complaint about these incidents, his higher duties were removed and his work was over-scrutinised. After conciliation he was provided with an apology, a training fund, and a contribution to his legal costs.
A female bar attendant was the subject of unwanted sexual advances from her manager, including kissing and touching. When she rejected the manager’s advances, she was dismissed from employment. In conciliation, the employer agreed to pay the complainant financial compensation, to develop a sexual harassment policy, and to train all of its employees in sexual harassment.
A woman with a hearing impairment was suspended from work when her employer discovered her disability. The employee did not want to return to work for the employer. In conciliation, the employer agreed to pay the employee financial compensation, and to allow her to continue to use her company car for a further four months.
Legal action can be complex, risky, and potentially very costly. Before you start any legal action, you should consult a lawyer. You can find a lawyer through the Law Society or your local community legal centre.
Other legal options
You might have other legal options for dealing with problems which are linked to your employment. Whether or not those options are available to you depends on your personal circumstances, the circumstances of your employment and dismissal, and the nature of the issue.
Some legal options which might be available are:
A 'general protections' application to the Fair Work Commission.
This is an application to the Fair Work Commission for orders because:
- you have been the subject of adverse action by your employer. Adverse action means something which disadvantages you in your employment, such as dismissal, discrimination, unfair division of work, or not allocating benefits fairly, and
- the adverse action was:
- on the basis of your race, colour, sex, sexual preference, age, disability, marital status, family or carer’s responsibility, pregnancy, religion, political opinion, national extraction or social origin; or
- related to your membership (or non membership) of a trade union; or
- because you had a right or entitlement under a workplace law, such as an entitlement to be paid, or to have paid leave, or to make a complaint to an external body.
If the adverse action includes you being dismissed, then you must make your application within 21 days of your dismissal.
If the Fair Work Commission cannot resolve the application by conciliation, then you can apply to the Federal Court (or Federal Magistrate’s Court) for hearing. This application to the Court must be made within 14 days. The 14 days begins from the day that the Fair Work Commission issues a certificate stating that the matter was not resolved by conciliation.
If the adverse action did not include you being dismissed then you have six years to make your application. But you should still make your application as soon as possible.