We’ve come a long way since the days of innuendo and witty put downs in the workplace. And, thankfully, society is a much fairer and equal place with people protected and included rather than marginalised.
However, despite great strides forward, sometimes discrimination in the workplace still rears its ugly head. As a manager or employer, you need to be aware of what constitutes discrimination, not only because your staff deserve to be treated fairly and equally, but because you could be breaking the law if you don’t.
What is unlawful discrimination in the workplace?
Discrimination in the workplace is based on certain prejudices and occurs when an employee is treated unfavourably because of a protected attribute.
The protected attributes outlined by Australian legislation include:
- Sexual orientation
- Physical or mental disability
- Marital status
- Family or carer’s responsibilities
- Political opinion
- National extraction
- Social origin
If you treat someone differently because they possess different characteristics to other members of staff, you could be acting unlawfully.
As an employer it is important to remember that discriminatory practices can happen at a number of stages in your employment relationship.
What is not considered unlawful discrimination?
Treating someone differently in your workplace is not necessarily considered unlawful discrimination. Sometimes, you will have to treat employees differently, and we should consider this a performance management issue, rather than unlawful discrimination.
If you are unsure whether your treatment of an employee is unlawful discrimination, consider the protected attributes we have already discussed. Has your treatment been influenced by any of these?
The Fair Work Act also provides that in certain situation an action may not be considered discrimination if:
- The action is permissible under state or territory anti-discrimination laws
- The action is based on the inherent requirement of the particular position concerned
- The action is taken against a staff member of an institution run in accordance with religious beliefs, and the action is taken in good faith and to avoid injury to those religious beliefs
The different classes of discrimination
Discrimination isn’t just one blanket term, it is varied and nuanced. As such, it can be broken down into three main categories: Direct, Indirect and Victimisation.
Direct discrimination is the result of when a person, or group of people, are treated less favourably than another person or group due to a protected attribute.
Indirect discrimination is the result of an unreasonable rule or policy that is set to be the same for everyone, which then has an unfair effect on people who share a particular protected attribute.
Victimisation is the result of an employee being treated unfairly because they have made, or plan to make, a complaint of discrimination, or have provided evidence of a complaint.
What is discrimination when compared to bullying and harassments?
Alongside being mindful of any discrimination in your workplace, you should also pay special attention to both bullying and harassment.
The Fair Work Amendment Act 2013 seeks to define bullying as repeated unreasonable behaviour by an individual towards a coworker, which then creates and increases the recipient's risk to their health and safety.
This can range from obvious verbal and physical assaults to psychological abuse.
Harassment, on the other hand, includes behaviours towards another individual, which include:
- Jokes which insult particular racial groups
- Sending explicit or sexually suggestive emails or text messages
- Displaying racially offensive or pornographic posters or screen savers
- Making derogatory comments or taunts about a person’s disability
What is adverse action?
There are general protection laws to protect your staff from ‘adverse’ actions at work. These are harmful actions which a person takes or threatens to take.
Some adverse actions include:
- Threatening to dismiss an employee
- Injuring an employee
- Harming an employee by changing their job or cutting hours
- Discriminating between employees
- Offering potential employees unfair terms and conditions compared to other employees
You will notice that in most cases, it is the employer who takes the adverse action, so it is important to be aware of the actions you make.
You can find a full list of adverse actions in section 342 of the Fair Work Act 2009.
Steps employers can take to ensure they aren’t discriminating
As an employer, you need to be proactive in preventing discrimination if you want to protect your employees, and stay on the right side of the law.
Avoiding discrimination starts before you even employ someone. Make sure your advert doesn’t discriminate by using particular terms. For example, "Office girl" could imply only women should apply.
Only use other terms like “highly experienced” when they are an actual job requirement or you could be discriminating against someone who hasn’t had the chance to gain any experience yet. You also need to ensure all candidates are treated the same – ask them the same set of questions and avoid questions which fall under the protected characteristics such as asking someone if they plan to start a family soon.
Create an equal opportunities policy. This should lay out the protected characteristics, direct and indirect discrimination and what behaviour is and isn’t acceptable at work. It will form the foundation of a safe and respectful workplace for your employees and can significantly reduce the risk of you inadvertently discriminating against staff by helping staff to understand their rights and responsibilities. By having such a policy in place you are already showing them you are a caring employer who believes in equal opportunity and will make sure they are all treated fairly.
Educate your workers about discrimination and let them know what your policy on it is. Include details of it in their contract of employment and employee handbook if you have one. Discrimination training can also form part of your onboarding process so employees are aware right from the start of the dos and don’ts.
As part of the company culture you should encourage your staff to respect each other’s differences.
Deal with complaints fast
If someone does complain of discrimination you should deal with it quickly and confidentially. Make sure you have a robust complaints procedure in place so staff feel they are listened to and that differences are respected in their workplace.
As well as having general discrimination training as part of the onboarding process for new employees, train your managers and supervisors to spot cases of discrimination and how to respond to them.
It’s great having a workplace policy on discrimination but not if you only pay lip service to it. You have to make sure it is properly enforced and your staff feel confident in its validity.
Regularly review your policy to make sure it is working effectively and make changes where necessary.
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Disclaimer: This document contains general information and is also not intended to constitute legal or taxation advice. If you need legal or taxation advice, we recommend you speak to a qualified adviser.