Discrimination | Harassment & Bullying | Employment Law

This guide explores workplace discrimination including adverse action under the Fair Work Act and penalties for unlawful discrimination within the workplace.

Discrimination in the workplace occurs when individuals or groups are treated less favourably than others due to their background or personal characteristics, known as 'protected attributes.' As an employer, it is not just a legal obligation but also a moral responsibility to prevent such discrimination. This prevention involves recognising the diversity of employees and ensuring all are treated equitably regardless of their age, race, gender, or other protected attributes.

Understanding Unlawful Discrimination

Unlawful discrimination refers to unfavourable treatment based on specific protected attributes outlined in State and Federal discrimination legislation. This legislation aims to create a fair and inclusive environment in public life, including the workplace. In Australia, protection from unlawful discrimination covers a range of characteristics:

  • Age: Ensuring employees are not discriminated against due to being too young or old.
  • Race, Colour, National or Ethnic Origin: Preventing biases based on racial background.
  • Religious Beliefs or Political Opinions: Respecting individual beliefs and opinions.
  • Sex, Sexual Orientation, Gender Identity, or Intersex Status: Acknowledging and respecting all gender identities and sexual orientations.
  • Marital Status: Treating employees the same regardless of their marital situation.
  • Pregnancy or Breastfeeding: Supporting and accommodating pregnant or breastfeeding employees.
  • Familial Status: Recognising the challenges and responsibilities of employees with families.
  • Career Responsibilities: Supporting employees with different career aspirations or responsibilities.
  • Physical or Mental Disability: Ensuring the workplace is inclusive and accessible for all.
  • Trade Union Activity: Respecting the rights of employees to engage in union activities.

Each state and territory may have additional legislation covering more protected attributes, which employers must also consider.

Identifying Discriminatory Conduct

Discriminatory conduct in the workplace can take various forms and can sometimes be subtle or unintentional:

  • Direct Discrimination: Occurs when an employee is explicitly treated less favourably than another due to their protected attribute. For instance, not promoting a qualified employee because of their age or gender.
  • Indirect Discrimination: Involves policies or practices that appear neutral but disproportionately disadvantage a group of people. For example, a uniform policy that does not accommodate certain cultural or religious attire.
  • Victimisation: Happens when an employee faces unfavourably treatment for complaining about discrimination or supporting another's complaint. This might include being overlooked for opportunities or subjected to a hostile work environment.

Discrimination can manifest in various aspects of employment, such as during the recruitment process, in determining salaries and benefits, in opportunities for promotion, or in decisions about redundancy or termination. It's essential for employers to critically examine their workplace practices to ensure they are fair and inclusive for all employees.

What is Direct Discrimination?

Direct discrimination occurs when an individual or a group is treated less favourably than others due to specific protected attributes. This treatment can be based on various factors such as race, gender, age, or sexual orientation. For example:

  • A job candidate may be turned down because the employer holds a stereotype that men are better suited for technical roles, as in the case of a female applying for a job selling construction machinery.
  • A promotion may be denied to an employee simply because of their religious beliefs or practices.
  • Pay disparities where employees doing the same job are paid differently because of their gender or ethnic background.

In all these scenarios, the discrimination is overt and based directly on the person's protected characteristics.

What is Indirect Discrimination?

Indirect discrimination happens when a policy or practice, which might appear fair at face value, actually puts certain groups at a disadvantage due to their protected attributes. It's more subtle than direct discrimination but can be equally harmful:

  • A job advertisement seeking candidates for a "young and energetic tech startup" indirectly suggests that older individuals are not preferred, even if they possess the necessary skills and experience.
  • A company policy requiring all employees to work on specific religious holidays could disadvantage those whose religious observances fall on those days.
  • Uniform requirements that don't take into account cultural or religious dress practices.

These examples show how policies or practices can inadvertently marginalise individuals based on their protected attributes.

Examples of Workplace Discrimination

  • Age Discrimination: Not hiring a younger worker due to stereotypes about their commitment level is a clear example of age discrimination.
  • Racial Discrimination: Preferring a candidate of a certain race over a better-qualified individual from another race, based on cultural fit, constitutes racial discrimination.
  • Gender Discrimination: Setting a height requirement for a role, like in firefighting, which disproportionately excludes women, can be seen as indirect gender discrimination, especially if the requirement is not essential for the job.
  • Sexual Orientation Discrimination: Dismissing an employee because of their sexual orientation, as in the case of a personal trainer being fired for being homosexual, is a direct form of sexual orientation discrimination.

Each of these scenarios highlights the need for employers to critically evaluate their practices, policies, and biases to ensure a discrimination-free workplace.

Understanding Adverse Action in the Workplace

Adverse action is a key concept under the Fair Work Act 2009, designed to protect employees' rights in the workplace. It encompasses any actions by an employer that negatively impact an employee or prospective employee, particularly when these actions are taken for discriminatory reasons or as a retaliation against an employee for exercising their workplace rights.

Workplace rights include, but are not limited to, benefits, responsibilities under workplace laws or agreements, and the ability to make complaints or inquiries about one's employment. Adverse actions can manifest in various forms, such as:

  • For Current Employees: Dismissing an employee, injuring them in their employment (such as not providing legal entitlements), altering their position to their disadvantage, or discriminating between them and other employees.
  • For Prospective Employees: Refusing to hire, or discriminating in the terms of employment offered.

It's crucial for employers to recognise that adverse actions do not include legally authorised actions or standing down employees as part of industrial action or contractual arrangements.

Adverse Action and Discrimination

Adverse action becomes unlawful when it's based on discriminatory reasons. This means an employer cannot take negative action against an employee or potential employee due to protected attributes like race, sex, age, disability, or political opinions. However, not all differential treatment is considered unlawful discrimination. Actions like performance management are lawful unless they are specifically based on one or more of the protected attributes.

Penalties for Unlawful Discrimination

The Fair Work Act provides robust mechanisms to address and penalize unlawful discrimination in the workplace. Fair Work Inspectors are empowered to investigate allegations of discrimination and issue penalties for violations.

Legal remedies for discrimination under the Act include various orders the Federal Court of Australia can make, such as injunctions, reinstatement of employees, and financial compensation. Besides the Fair Work Act, other federal, state, and territory laws like the Sex Discrimination Act 1984 and the Disability Discrimination Act 1992 also provide frameworks against workplace discrimination.

Addressing Workplace Discrimination and Conflict

Employees who suffer from discrimination in the workplace can lodge conciliation complaints with the Australian Human Rights Commission. This process allows for an informal resolution of issues before potentially escalating to court proceedings.

Furthermore, it's important to note that bullying and harassment, while serious issues, only constitute unlawful discrimination under the Fair Work Act if they are linked to the protected attributes. Issues of bullying or harassment falling outside this scope are handled by the Fair Work Commission or through Workplace Health and Safety legislation.

  1. What is Workplace Discrimination in Australia? Workplace discrimination in Australia refers to the unfair treatment of employees or job applicants based on protected attributes such as age, race, gender, sexual orientation, or disability. This includes both direct and indirect discrimination, where individuals are treated less favourably or subjected to unfair policies due to these attributes.
  2. What are Some Types of Discrimination? Common types of discrimination include age discrimination, racial discrimination, gender discrimination, sexual orientation discrimination, and disability discrimination. Each type involves treating someone unfavourably because of their specific characteristics or background.
  3. Can an Employee Sue an Employer for Discrimination? Yes, an employee can sue an employer for discrimination. If an employee believes they have been discriminated against, they can file a complaint with bodies like the Australian Human Rights Commission or pursue legal action through the courts.
  4. What are Three Examples of Actions that Could be Considered Discrimination in a Workplace? Refusing to promote a qualified employee solely because of their age, implementing a dress code that unfairly targets employees of certain religious backgrounds, paying an employee less than others in a similar role due to their gender.
  5. What is Adverse Action in the Fair Work Act? Adverse action in the Fair Work Act refers to actions taken by an employer that negatively affect an employee or prospective employee, particularly when these actions are discriminatory or in retaliation for an employee exercising their workplace rights. This includes unfair dismissal, altering employment conditions to the employee’s disadvantage, or discrimination in employment terms.
  6. How Can Employers Prevent a Successful Claim? Employers can prevent successful discrimination claims by implementing and enforcing anti-discrimination policies, providing regular training on discrimination and workplace rights, ensuring fair and equitable treatment of all employees, and promptly addressing any complaints of discrimination.


Understanding adverse action and its relation to workplace discrimination is essential for maintaining a fair and lawful work environment. Employers are encouraged to familiarise themselves with their responsibilities under the Fair Work Act and related legislation and to implement effective policies and training to prevent discrimination, bullying, and harassment in the workplace.

For further guidance on managing these complex issues, resources like Employment Compass; guides on bullying and harassment offer valuable insights.

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