All employers have a responsibility to make sure that their employees, and people who apply for a job with them, are treated fairly. This responsibility is set out in federal and state anti-discrimination laws, as well as the Fair Work Act 2009 (Cth). Taken together, they make certain types of workplace behaviour against the law. As an employer you need to prevent discrimination from occurring in the workplace.
In a world of ever-increasing political correctness, the lines can become blurred between what is discriminatory and what is just plain insulting. While it is important to be considerate to others in all matters, anti-discrimination legislation has very clear definitions of what constitutes discrimination.
So what exactly is “discrimination”?
Discrimination is when people are treated differently because of an attribute such as sex, disability or race, so as to advantage some people and disadvantage others on the basis of that attribute. Discrimination does not have to be malicious or intended, targeted at a particular person or even foreseen.
There are two types of discrimination:
Direct discrimination: can be overt and obvious. It occurs when a person(s) is treated unfairly or less favourably because of an actual or assumed attribute described in state or federal legislation. It is often based on stereotyped or generalised opinions. Discrimination is unlawful. Examples are making assumptions that because an employee has a child, they will be unreliable, or because an employee is married they need less money than a single employee.
Indirect discrimination: may be unintended or less obvious. It occurs when people are treated the same, but because of an attribute, a person(s) is unable or less able to comply with a condition, requirement or practice (whether existing or proposed) than others who do not have that attribute, and is not reasonable in all the circumstances. Indirect discrimination is unlawful regardless of whether the person discriminating intends to discriminate or is unaware that they are doing so. An example of this is the old airline rule that used to set age and height limits on cabin staff. As age and height had absolutely nothing to do with a persons ability to the job, it was discriminatory.
So what exactly are “protected attributes”?
- Age – covers all ages and makes compulsory retirement due to age unlawful. Legal age limits still apply and this provision requires a person, regardless of their age, to meet the inherent requirements of their employment
- Breastfeeding – includes the act of expressing milk
- Carer status – means the status of a person on whom another person is wholly or substantially dependent for on-going care and attention on a substantially noncommercial basis, regardless of whether they have a family relationship
- Disability – includes physical, psychological and intellectual disabilities. There are certain legal exceptions and consideration in relation to disability and employment
- Gender identity – means the gender related identity, appearance or mannerisms or other gender related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth. A person may identify as a employee of a particular gender by their style of dress, medical intervention or other means, including a change of name. There are certain legal exceptions and consideration in relation to gender identity
- Industrial activity – means refusing to join, participating or not participating in, or refusing to participate in a lawful activity organised or promoted by an organisation of employees, employers or any other organisation set up for people involved in a particular industry, trade, profession, business or means of employment
- Intersex status – means the status of having physical, hormonal or genetic features that are neither wholly female nor wholly male, or a combination of female and male, or neither female nor male. Being intersex is a biological condition, not a gender identity. This protection means that a person who is intersex does not need to identify as either male or female.
- Lawful sexual activity – refers to engaging in or not engaging in, or refusing to engage in a lawful sexual activity, and includes legal prostitution. It does not include illegal activities such as paedophilia or incest
- Marital status – means the status of being single, married, divorced, widowed, a de facto spouse or married but living separately from a spouse. The definition of spouse also applies to same sex de facto couples
- Parental status – includes the status of foster, adoptive and step parents and guardians
- Physical features – means features beyond a person’s control such as height, weight, size or bodily characteristics. It does not cover self-imposed physical decoration e.g. tattoos, piercings etc.
- Political belief or activity – includes holding or not holding a lawful political belief, engaging in or refusing to engage in a lawful political activity
- Pregnancy – includes whether a woman is pregnant, is suspected of being pregnant, or is expected to become pregnant in the future
- Race – includes colour, decent or ancestry, nationality and ethnicity
- Religious belief or activity – includes holding or not holding a lawful religious belief or view, or engaging or not engaging in, or refusing to engage in a lawful religious activity
- Sex – includes males and females and covers discrimination based on a characteristic relating to a person of a particular sex, or one that is generally believed to be related to a particular sex
- Sexual orientation – covers the sexual orientation of homosexuals, lesbians, bisexuals and heterosexuals, whether actual or presumed
- Personal association – means association or assumed association with someone who possesses or is assumed to possess one of the attributes/personal characteristics as described above
Employers can be held legally responsible for acts of discrimination or harassment that occur in the workplace, whether by managers or employees, as a personal attack or in connection with a person’s employment. This is known as vicarious liability.
To minimize your liability, it’s essential that you can demonstrate that you have taken all reasonable steps to prevent discrimination from occurring and that you have responded appropriately to resolve incidents of discrimination in your workplace.
If you need help establishing a discrimination-free workplace, HR Gurus can help, so don’t hesitate to give us a call.
Written by resident HR Guru Louise Betts