Workplace Discrimination: Legal Pathways and Solutions

Discrimination in the workplace remains a persistent issue in Australia. Fortunately, various laws, policies, and regulatory bodies exist to combat such discrimination and provide avenues for recourse. In this article, we explore the current legal landscape in Australia regarding discrimination in the workplace and the steps individuals and legal professionals can take to address it.

What is Workplace Discrimination?

Workplace discrimination is defined by the Fair Work Ombudsman as instances when an employer takes adverse action against an employee or prospective employee based on their protected attributes. Such attributes include:

• race
• skin colour
• gender identity
• age
• physical or mental disability
• marital status
• family or carer responsibilities
• pregnancy
• religion
• political opinion, and more.

Examples of Workplace Discrimination

Adverse action, as described by the Fair Work Act, includes several actions that an employer is doing, threatening, or organising. The following section highlights a few instances of workplace discrimination, and ways such instances can be mitigated.

Hiring and Recruitment Bias

Discrimination can occur during the hiring process when employers make decisions based on an individual's beliefs, culture, gender, or more. This may involve rejecting job applicants based on attire, assuming cultural stereotypes, or asking inappropriate questions about practices or lifestyle choices during interviews.

The Australian Human Rights Commission provides a checklist for employers who seek to eliminate bias during the recruitment process. Some suggested actions by the AHRC include consistency and uniformity in the treatment of candidates, not requiring irrelevant personal information from applicants, and maintaining a record of the decisions and reasons behind them. Recruitment staff, whether internal to the company or a recruitment agency, need to understand their obligations under the law and be dedicated to a fair process. This is the responsibility of an employer.

Denial of Promotions

Individuals who are qualified for a promotion but fail to receive it due to their protected attributes can be considered workplace discrimination. Women who are about to, or currently are, pregnant often face significant hurdles receiving a promotion as a result of needing to take parental leave. Denying a position based on such conditions is workplace discrimination.

Suitability with Dress Protocols

Individuals who wear religious attire may encounter challenges when seeking employment or advancing their careers. Some employers may have uniform or dress code policies that pose barriers, citing safety reasons or conflicting with established workplace protocols.

These challenges can be addressed through proactive measures such as contacting relevant government bodies and seeking clarification on existing laws and accommodations. Legal professionals can play a crucial role in advocating for individuals facing such challenges and exploring legal remedies to ensure fair treatment in the workplace.

In South Australia, there are specific protections in place for discrimination in employment on the grounds of ‘religious dress’, acknowledging the importance of accommodating religious attire in the workplace.

Legal Protections for Individuals Experiencing Workplace Discrimination

Under the Fair Work Act 2009, Australian employers are prohibited from taking adverse action against an employee or prospective employee based on a protected attribute. This means that discriminatory practices, such as refusal to hire, dismissal, or unfavourable treatment due to beliefs, race, gender identity, and more, are unlawful.

In addition to the Fair Work Commission and the Ombudsman, individuals facing discrimination in the workplace can seek assistance from the Australian Human Rights Commission (AHRC). The AHRC accepts complaints regarding workplace discrimination and has a dedicated complaint handling function for discrimination in employment.

Legal Consequences for Employers of Discriminatory Workplaces

Employers bear legal responsibility for any instances of discrimination or harassment that take place within their workplace, or are related to an individual's employment. This is referred to as vicarious liability.

This responsibility extends to any conduct that occurs during office hours and/or using employer-provided technology. As discussed by the Australian Human Rights Commission (AHRC), in the case of Leslie v Graham [2002] FCA, “an employer was found to be vicariously liable for sexual harassment in a situation where the harassment occurred between two employees in the early hours of the morning in a serviced apartment they were sharing, while attending a work-related conference.”

To mitigate their liability, employers must show that they have implemented reasonable measures to prevent discrimination or harassment in their workplaces. They must further demonstrate that they have taken appropriate actions to address and resolve any instances of discrimination or harassment that do occur.

Anti-discrimination laws do not offer a precise definition of 'all reasonable steps', as what qualifies as 'reasonable' can vary depending on the size and nature of the business. Employers should proactively take measures to reduce the likelihood of discrimination or harassment transpiring within their workplace.

Actions by Legal Professionals to Address Discrimination in the Workforce

Legal professionals will do their best to provide expertise and professional advice to individuals on existing laws and regulations to assist them in dealing with any forms of workplace discrimination.

We can seek to enforce existing laws and hold employers accountable for engaging in discriminatory practices. That can be through the complaint procedures above, alternative dispute resolution and representing those individuals in litigation.

Legal professionals, as well as the general public, can make submissions to State and Federal Cabinets for the development of new laws and policies to address discrimination and worker rights.

Conclusion

Discrimination in the workplace is a complex issue that requires concerted efforts from both individuals and legal professionals to address effectively. By leveraging existing legal protections, seeking assistance from relevant regulatory bodies, and advocating for systemic changes, we can work towards creating inclusive work environments where individuals of all religious backgrounds are respected and treated fairly.

For further insights, please refer to the article by The Law Society of NSW on the elimination of discrimination and strategies for the legal profession.

If you are struggling with workplace discrimination, Wadlow Solicitors can assist you by providing expert legal advice tailored to your situation. Call our offices on (08) 8212 2955 to arrange an appointment with a solicitor.