Under federal and state legislation, discrimination happens when someone or a group of people is treated less favourably than the other person or group because of their race, colour, sex, sexual preference, ethnic origin, marital status, age, disability, family or carer’s responsibilities, religion, political opinion, trade union activity; or some other characteristic specified under the anti-discrimination or human rights legislation.
To treat someone differently is not necessarily unlawful discrimination. For example, performance management may not be considered as unlawful discrimination. The Fair Work Act 2009 states that in some circumstances an action may not be considered as discrimination. This includes an action which is permissible under the state or territory anti-discrimination laws or an action based on the inherent requirements of the particular person concerned. Bullying or harassment is not necessarily considered as unlawful discrimination under the Fair Work Act 2009 unless the behaviour shown is linked to one of the attributes above.
Unlawful Discrimination at workplace
It is unlawful for an employer, regardless of size, to discriminate against an employee. This includes full time, part time and casual employees, probationary employees, apprentices and trainees, and individuals employed for fixed periods of time or tasks. It may occur in recruiting and selecting a staff, terms, conditions, and benefits offered as part of employment, who receives training and what sort of training is offered, who is considered and selected for transfer, promotion, retrenchment or dismissal.
Over the past 30 years the Commonwealth Government and the state and territory governments have introduced anti-discrimination law to help protect people from discrimination and harassment.
The following laws operate at a federal law and the Australian Human Rights Commission has statutory responsibilities under them:
- Age Discrimination Act 2004
- Australian Human Rights Commission Act 1986
- Disability Discrimination Act 1992
- Racial Discrimination Act 1975
- Sex Discrimination Act
- The following laws operate at the state and territory level:
- Australian Capital Territory Discrimination Act 1991 (ACT)
- New South Wales Anti-Discrimination Act 1977 (NSW)
- Northern Territory Anti-Discrimination Act 1996 (NT)
- Queensland Anti-Discrimination Act 1991 (QLD)
- South Australia Equal Opportunity Act 1984 (SA)
- Tasmania Anti-Discrimination Act 1998 (TAS)
- Victoria Equal Opportunity Act 1995 (VIC)
- Western Australia Equal Opportunity Act 1984 (WA)
Australian law recognizes two ways in which discrimination may occur. These are direct and indirect discrimination.
Direct Discrimination occurs when a person is treated less favourably than another person who does not share the first person’s attribute. It is the most obvious to identify. The intention of the discriminator is irrelevant: a person who believes he or she is doing the right thing (for example, dismissing a pregnant woman ‘for her own good’) is liable in the same way as someone who is blatantly biased and actively discriminatory.
Indirect Discrimination is less obvious and more difficult to identify. It focuses on the effect on the effect of the discriminator’s action rather than on the attributes of the person towards whom the action is directed, although the latter are still relevant. Australian law is not uniform with respect to the elements comprising indirect discrimination.
The different types of discrimination:
Age Discrimination Act 2004 and What is Age Discrimination?:
The Age Discrimination Act 2004 (ADA) makes it unlawful to treat people less favourably because of their age, protecting both younger and older Australians.
Direct age discrimination happens when a person who is the best person for the job is not employed simply because of their age.
Indirect age discrimination happens when an employer requires an older person to meet a physical fitness test which more young people can meet, if the fitness standard is not reasonable for the job in question.
Like other anti-discrimination laws, the ADA provides for exemptions. These include state laws, certain health programmes, and youth wages or direct compliance with industrial agreements and awards.
Under the ADA it is not unlawful to provide a benefit to a particular age group where the action was intended to meet a need that arises from that age group.
Sex Discrimination Act 1984 and What is Sex Discrimination?:
The Sex Discrimination Act 1984 makes it unlawful discriminate against a person because of sex, marital status or because they are pregnant or might become pregnant. It is also unlawful to dismiss a person from their employment because of their family responsibilities. This Act promotes the principles of equality for women and men.
Direct sex discrimination happens when a company pays men more than women who are doing the same work.
Indirect sex discrimination happens when there is a condition, requirement or practice imposed which appears to treat everyone the same, but disadvantages a person because of their sex, marital status etc. If the requirement is unreasonable, it could be indirect discrimination.
It can occur if a woman is treated in any of the following ways because she is pregnant or might become pregnant:
Refused employment or promotion
Dismissed or retrenched
Excluded from a training course
Reduced hours of work
Demoted or reduced seniority
Refused accommodation or goods or services
Excluded from an education institution
Transferred to another position when there are no valid safety or medical reasons for this
Disability Discrimination Act 1992 and What is Disability Discrimination?:
The Disability Discrimination Act 1992 (DDA) makes it unlawful to discriminate against a person because of their disability.. The Act also covers people who are relatives, friends and carers of people with a disability. There are two types: direct and indirect disability discrimination.
When a person cannot perform the inherent requirements of a job it is not unlawful for an employer to not employ the person. However, the employer has to have considered whether the person could perform the requirements of the job with ‘reasonable adjustment’ for the disability.
When a person with vision impairment perform a clerical job with voice activated software it would impose an ‘unjustifiable hardship’ on the employer to provide the reasonable adjustment, it may not be unlawful discrimination.
Racial Discrimination Act 1975 and What is Racial Discrimination?:
Racial discrimination is treating someone less favourable because of his or her race, colour, descent, national origin or ethnic origin than someone of a different ‘race’ would be treated in a similar situation. This is known as ‘direct discrimination’.
To make everyone satisfy the same criterion when the effect is that a higher proportion of people of one ‘race’ cannot satisfy it, unless the criterion is reasonable and relevant to the particular circumstances. This is known as indirect discrimination.
Racial Discrimination Act provides for ‘special measures’. These programs with the objective of securing the adequate advancement of a group, or individual members, affected by historic disadvantage to help them enjoy and exercise their human rights in full equality.
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