It is unlawful to discriminate against employees, contractors or job applicants because of their background or certain personal characteristics (often described as an attribute). Some of the most common attributes are:
Although these are the most common attributes, the legislation of the state or territory in which your business is located may provide further prohibited attributes. There are federal, state and territory anti-discrimination laws including prohibition on discrimination in the Fair Work Act 2009 (Cth) as part of the General Protections provisions.
Discrimination can be direct or indirect.
Direct discrimination occurs when a person is treated less favourably because of their attribute. For example, refusing to employ a woman as the job is traditionally performed by men.
Indirect discrimination concerns workplace rules or procedures which are not discriminatory on their face but in their practical application have a detrimental effect disproportionately on employees with a particular attribute. However, it is not indirect discrimination if the rule or policy is reasonable, having regard to the circumstances of the case. For example, a person could only apply to be a member of the police force if he/she was a certain height. This requirement prevented a substantial number of women and individuals from certain racial backgrounds from joining the police force.
If an employee is performance managed or dismissed for a factor that includes a prohibited attribute it is still discrimination. If a 65 year old’s performance levels are dropping and the assumption is that he is slowing down because of his age, the fact that the employee’s performance levels dropped still gives rise to discrimination – the employee’s age was taken into account which is prohibited.
In some circumstances, it may be lawful to discriminate against a person based on their disability if, subject to reasonable adjustment, the employee is prevented, because of the disability, from performing the inherent requirements of the role. However, this is a delicate area which must be determined on a case by case basis and requires a detailed assessment of the facts and circumstances of each individual scenario. It is often dependent upon medical evidence to support those findings.
Sexual harassment is an unwelcome sexual advance, unwelcome request for sexual favours or other unwelcome conduct of a sexual nature which makes a person feel offended, humiliated and/or intimidated, where a reasonable person would anticipate that reaction in the circumstances.
Whether the discrimination or sexual harassment was intended is not relevant. The focus is on the conduct not the intention.
Where unlawful discrimination or sexual harassment occurs within the workplace, employers can be held vicariously liable for the conduct of their employees. Directors as well as other employees of businesses can also be held liable for the conduct.
It is unlawful for employers or their staff to performance manage, or otherwise victimise someone because that person alleges or pursues allegations of sexual harassment or discrimination.
Discriminatory conduct and sexual harassment are not only against the law, they can also have an impact on the commercial reputation of a business. Additionally, they can adversely affect productivity, performance, staff commitment and morale within the workplace. Discrimination or sexual harassment within the workplace can lead to claims being filed in state and federal courts and tribunals.
In a recent case of sexual harassment, a female employee successfully received over $100,000 for the psychological injury she suffered from the discrimination of her male colleague. This was in addition to the lost income she suffered. The employer was ordered to pay the amounts.
Employers not only have a legal responsibility to take all reasonable steps to prevent discrimination and sexual harassment within the workplace, employers also have the responsibility to put a stop to discrimination and sexual harassment as soon as they become aware of the unlawful conduct.
It is also incumbent on business owners to create a fair and even-handed complaints procedure to deal with any discrimination and sexual harassment issues.
Employsure Law is the partner law firm for Australia’s leading workplace relations consultancy company, Employsure. It provides litigation workplace law services to Employsure clients.
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