It is a given to treat all people equally and ensure that we are uprooting systems that perpetuate discrimination and ultimately benefit some people over others. Diversity in the workplace has also been shown to promote creativity and boost morale, productivity and business profits, so it is a win-win situation for everyone; beyond being the right thing to do. If you are in the process of recruiting new employees, wish to be more aware of unlawful workplace discrimination, or believe that adverse action has been taken against you, this Business Kitz article will provide you with all the answers regarding business expectations, the law, remedies and penalties.
What is classified as unlawful workplace discrimination?
The responsibility to treat all workers fairly and the right to receive equal opportunities based on the same level of merit is set out in the Fair Work Act 2009 and recognised in federal and state anti-discrimination laws. The Australian Human Rights Commission Act 1986 (Cth) protects people from discriminatory workplace behaviour due to their national extraction, religion, political opinion, social origin, medical or criminal record, trade union involvement, or nationality. Because where is fairness and equality without freedom of speech or freedom of expression? Under the Fair Work Act 2009, unlawful discrimination in the workplace is when a company or employer takes adverse action against a person in the process of applying for a job or one that is currently employed on the sole basis of the attributes of that person. Under Queensland’s anti-discrimination legislation, these attributes can be:
- Sexual orientation
- Political opinion or social origin
- Marital status or carer/family responsibilities
- Mental or physical disability or impairment
- Status as a legal sex worker
Discriminatory actions may involve direct discrimination of one employee where there is evident, different treatment of one staff member over another because of these protected attributes. Indirect discrimination, through the establishing of an unreasonable policy or requirement, singles out or disadvantages a certain group or victimises those who have made a complaint regarding discrimination.
What is adverse action and what does it look like?
A potential employer taking, threatening or organising to take adverse action can be described as treating someone unfavourably due to their personal characteristics over another candidate, or threatening to do so. This may look like changing an employee’s tasks or position to their detriment, dismissing someone unfairly, discriminating between one employee and another, injuring an employee, or refusing to hire or discriminating against a prospective candidate on the terms and conditions in the employment offer. For example, an employee being denied a promotion because they are pregnant and may take parental leave means adverse action has been taken against them and is unlawful under general protections in the Fair Work Act. These protections cover employees under all types of employment contracts, whether this be part time, full time, casual or temporary contracts for a fixed term or project, simply because there are unlikely to be exemptions for human rights.
Adverse action is not treating an employee differently in the case of performance management, for example to assess what tasks can be done more efficiently to rectify past mistakes made by the employee.
Actions to take against workplace discrimination
If you believe that you, or somebody you know has been discriminated against at work, it is generally best practice to discuss this matter with a trusted representative within the company and consider the report lodgment system your employer has in place. You can lodge an application to the Fair Work Commission in relation to a breach of the general protections within a 21-day time period. You can also raise your concerns to the Queensland Human Rights Commission for complaints of unlawful discrimination, victimisation or other contraventions of the Anti-Discrimination Act 1991 or the Australian Human Rights Commission for discrimination or bullying based on age, race, disability or sex. There are various remedies and penalties available for adverse action, where the maximum penalty is $66,600 for a corporation and $13,320 for an individual per contravention.
It is important to uphold the responsibility of preventing unlawful workplace discrimination in the business that you own, invest in, or are an employee of, not only as a legal requirement, but as a human right. The first step to creating an open, accepting culture within your business is to solidify it with the necessary documentation, which is made easy through Business Kitz’s customisable contract and policy templates. If you are seeking remedies or are involved in legal action on the grounds of discriminatory behaviour in the workplace, we recommend seeking legal advice with our sister company Legal Kitz. You can book a free 30-minute consultation with their experienced and highly qualified team via our website now.