 Show All employers have a responsibility to make sure that their employees, and people who apply for a job with them, are treated fairly. This responsibility is set out in federal and state anti-discrimination laws, as well as the Fair Work Act 2009 (Cth). Taken together, they make certain types of workplace behaviour against the law. As an employer you need to prevent discrimination, harassment or bullying from occurring in the workplace. What is unlawful discrimination?Discrimination occurs when a person, or a group of people, is treated less favourably than another person or group because of their background or certain personal characteristics. Federal discrimination laws protect people from discrimination of the basis of their:
For more information see the relevant fact sheets. The Australian Human Rights Commission Act 1986 (Cth) protects people from discrimination in employment because of their religion, political opinion, national extraction, nationality, social origin, medical record, criminal record or trade union activity. For more information see the Other areas of workplace discrimination fact sheet. A number of these characteristics are also covered by the Fair Work Act 2009 (Cth). Some state and territory laws protect people from discrimination on the basis of additional personal characteristics. For more information, see A quick guide to Australian discrimination laws.
Discrimination can happen at different points in the employment relationship, including:
What is harassment?Under discrimination law, it is unlawful to treat a person less favourably on the basis of particular protected attributes such as a person’s sex, race, disability or age. Treating a person less favourably can include harassing or bullying a person. The law also has specific provisions relating to sexual harassment, racial hatred and disability harassment.
Harassment can include behaviour such as:
It is important to understand that a one-off incident can constitute harassment. The Sex Discrimination Act 1984 prohibits harassment in the workplace by employers, co-workers and other “workplace participants”, such as partners, commission agents and contract workers. Sexual harassment is broadly defined as unwelcome sexual conduct that a reasonable person would anticipate would offend, humiliate or intimidate the person harassed. The Disability Discrimination Act 1992 prohibits harassment in the workplace based on or linked to a person’s disability or the disability of an associate. The Racial Discrimination Act 1975 prohibits offensive behaviour based on racial hatred. Racial hatred is defined as something done in public that offends, insults or humiliates a person or group of people because of their race, colour or national or ethnic origin. All incidents of harassment – no matter how large or small or who is involved – require employers or managers to respond quickly and appropriately. If issues are left unaddressed, a hostile working environment can develop which can expose employers to further complaints. What is workplace bullying?The Fair Work Amendment Act 2013 defines workplace bullying as repeated unreasonable behaviour by an individual towards a worker which creates a risk to health and safety.
Bullying behaviour can range from obvious verbal or physical assault to subtle psychological abuse. It can include:physical or verbal abuse
What is unlikely to constitute bullying, harassment or discriminationLegitimate comment and advice, including relevant negative feedback, from managers and supervisors on the work performance or work-related behaviour of an individual or group should not be confused with bullying, harassment or discrimination. Providing negative feedback to staff during a formal performance appraisal, or counselling staff regarding their work performance, can be challenging. Managers should handle these conversations with sensitivity but they should not avoid their responsibility to provide full and frank feedback to staff. Meeting your obligationsEveryone has the right to work in an environment free from bullying, harassment, discrimination and violence. Employers need to be aware of their responsibilities to ensure that the working environment or workplace culture is not sexually or racially hostile. Employers should develop and implement targeted practices to address inappropriate workplace behaviour and deal effectively with any complaints. Employers should also be proactive in addressing hostile behaviour that may be embedded in the workplace culture. Examples of a potentially hostile working environment are where racially or sexually crude conversations, innuendo or offensive jokes are part of the accepted culture. An employee can complain about such conduct as harassment even if the conduct in question was not specifically targeted at him or her. Under occupational health and safety legislation, employers and employees are required to comply with any measures that promote health and safety in the workplace. Because of this duty, employers need to eliminate or reduce the risks to employees' health and safety caused by workplace bullying. As of 1 January 2014, the Fair Work Ombudsman can receive complaints from workers who believed they have been bullied at work. Further information is available at www.fairwork.gov.au/complaints. These documents provide general information only on the subject matter covered. It is not intended, nor should it be relied on, as a substitute for legal or other professional advice. If required, it is recommended that the reader obtain independent legal advice. The information contained in these documents may be amended from time to time.
Thousands of workplace discrimination cases occur each year. Fortunately, discrimination is against the law and there are steps you can take to hold your employer accountable and ensure that your rights are protected. It’s not easy to report discrimination, but it’s likely that nothing will change if you don’t take action. If you feel you are being discriminated against in the workplace, take these steps. Remove the emotion. In order to advance a discrimination claim, it is crucial to remove the emotional elements and focus on specific issues, facts and details, according to Peggy Mastroianni of the Equal Employment Opportunity Commission. Feelings and hunches are not adequate. For example, it’s not enough to say that your manager doesn’t like you. To prove you have been discriminated against, you must be able to provide concrete facts. Make a record of the offensive actions. Keep a journal of the discriminatory behavior. According to FindLaw, your notes should include the time, date, location and the names of people who witnessed the incident. Plus, include a description of what occurred. Consider alternatives. Author and employment consultant Jathan Janove believes many offensive workplace incidents are not deliberate or conscious discrimination. Rather, the problem is poor communication and management. He advises meeting your manager and making it clear you want to work together to help solve the problem. Report the discrimination. If the offending behavior persists, report it to your company’s management. When employers receive a discrimination complaint, they are obligated by law to investigate it in a timely manner. Be mindful of retaliation. The EEOC says the largest percentage of its cases are retaliation against workers who have made a complaint. If you experience retaliation, add those details to your journal. Get outside help to protect your rights. Finally, if you’re being discriminated against and your employer is unresponsive or has retaliated against you, it’s time to contact an attorney or the EEOC. |
What would you do if you noticed an employee treating another employee in a discriminatory manner?
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