What is workplace discrimination?

Workplace discrimination occurs when a person is treated less favourably than others in employment because of a protected attribute. Australian federal anti-discrimination law covers race, sex, sexual orientation, gender identity, intersex status, marital or relationship status, family responsibilities, pregnancy, breastfeeding, age, disability, religion (in some states), and political opinion or activity in some contexts.

The main federal laws are the Racial Discrimination Act 1975, the Sex Discrimination Act 1984, the Disability Discrimination Act 1992, the Age Discrimination Act 2004, the Australian Human Rights Commission Act 1986, and the Fair Work Act 2009. Each state and territory also has its own anti-discrimination law administered by a state board or commissioner. The Fair Work Act specifically prohibits adverse action against an employee because of a protected attribute or for exercising a workplace right.

Discrimination can be direct (treating someone less favourably because of a protected attribute) or indirect (applying a rule or condition that disadvantages people with a protected attribute, without sufficient justification). Both forms are unlawful unless covered by a specific exception in the legislation, such as a genuine occupational qualification for a particular role.

Complaints can be made to the Australian Human Rights Commission, which conducts free conciliation between the parties. If conciliation does not resolve the complaint, the complainant can take the matter to the Federal Court or Federal Circuit and Family Court, where the court can order remedies including compensation, an apology, reinstatement, or training programmes for the employer. State anti-discrimination tribunals have similar processes. Complaints under the Fair Work Act go to the Fair Work Commission and can include reinstatement and compensation. Time limits apply (often six months from the conduct), so employees who think they have been discriminated against should seek advice quickly.