Protection from discrimination at work
The Fair Work Act prohibits an employer from taking adverse action against an employee or a prospective employee for discriminatory reasons.
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Employees and prospective employees have the right to be free from discrimination based on protected attributes.
The protected attributes under the Fair Work Act are:
- sexual orientation
- physical or mental disability
- marital status
- family or carer's responsibilities
- political opinion
- national extraction
- social origin
- gender identity
- intersex status.
Adverse action includes doing, threatening or organising any of the following:
- firing an employee
- injuring the employee in their employment (for example, not giving an employee their legal entitlements, such as pay or leave)
- changing an employee's job to their disadvantage
- treating an employee differently than others (for example, treating someone differently based on their sex or gender identity)
- not hiring someone
- offering a potential employee different and unfair terms and conditions for the job compared to other employees.
Discrimination can happen to:
- someone applying for a job as an employee
- a new employee who hasn't started work
- an employee at any time during employment.
Example 1: Older workers and discrimination at work
Dimitri is an experienced barista with excellent references. He applies for a vacancy at a local coffee shop. During the job interview, the manager asks him how old he is. Dimitri tells the manager he is 57 years old.
The next day the manager calls Dimitri to tell him that he didn’t get the job because the coffee shop wants a ‘younger, fresher look’ for their baristas. They have hired a 17-year-old who is less qualified for the job.
This is discrimination. Dimitri is treated differently from other job applicants because of his age.
To learn about the impact of age discrimination watch the Australian Human Rights Commission’s short video about the Power of oldness.
Example 2: Pregnancy and discrimination at work
Sally is employed as an account manager at an advertising firm. The manager at the firm tells all the account managers that they can attend a training course. Sally is pregnant and tells her colleagues and the manager the good news. The manager asks Sally to come to a meeting to discuss the training. At the meeting, he tells her that he has changed his mind and that she can’t attend the training because she is pregnant.
This is discrimination. Sally is treated differently from her colleagues because she is pregnant.
Adverse action isn't always discrimination, even though it might seem to be. There can be lawful reasons for adverse action that have nothing to do with someone's personal characteristics.
It's not discrimination if the actions:
- are allowed under state, territory or federal anti-discrimination laws
- are taken against an employee of a religious institution to avoid harming the organisation's religious beliefs
- do not relate to one or more of the protected attributes (visit our Bullying in the workplace page for more information), or
- relate to the necessary requirements of the job.
Example 1: When an adverse action isn’t discrimination
Peter has a physical disability and relies on a wheelchair. He works as a marketing employee. On his last project, he made some mistakes. Peter's manager tells him that he’ll need to do some training to develop his skills. Peter continues to make mistakes after he has done the training. As a result, Peter's employer changes his duties to more general administration tasks while he does more training.
In this example, Peter hasn't been discriminated against. His job has been changed because of his poor performance and not because of his physical disability.
If the changes to Peter's job happened because of his disability it would most likely be discrimination.
Example 2: Necessary requirements of the job
Lisa is 17 years old and recently applied for a job working in a bar serving alcohol. However, the state's liquor laws don't allow people under 18 years old to serve alcohol.
Being able to legally serve alcohol is a necessary requirement of the job.
The company wrote to Lisa saying that because she was under 18 and couldn't legally serve alcohol, she didn't meet the requirements of the job.
It's unlikely that the company has unlawfully discriminated against Lisa because of her age. The reason why it refused to employ her was that she wasn't able to legally serve alcohol and this is a necessary requirement of this job.
Source reference: Fair Work Act 2009 s.351