Discrimination can take various forms, but none
of them are desirable. Many forms of discrimination are specifically prohibited by legislation and it is only these which are illegal
What is discrimination?
Discrimination in employment means being treated less fairly than someone else for reasons
that are unrelated to your ability to do a job. From the perspective of employees, discrimination is a barrier to achievement of full potential and job satisfaction. For employers, failure to use employees' full potential means that the workplace will be less than fully productive and competitive. For these reasons, it is in the interest of everyone that Australian workplaces are free of discrimination, with all decisions based on merit.
What is the difference between direct and indirect discrimination?
Discrimination is said to be direct when an employee is disadvantaged by a decision based
on an assumption arising from the employee being in a certain category. An example would
be an employer who declines to employ Eskimos because it is assumed that all Eskimos are
Indirect discrimination arises when employees are disadvantaged or excluded by
arrangements (eg policies, procedures) that at face value appear neutral. For example, a
factory that has all its procedures written in English, yet not all of its employees speak
What are the main bases for discrimination?
Discrimination in employment can manifest itself in range of different outcomes:
- not being selected for a job by a new employer
- not being promoted by your existing employer; or
- being required to follow a work rule or policy that disadvantages certain groups.
Discrimination is only illegal if it is specifically prohibited by legislation. Forms of discrimination
that have been prohibited by different states and federal legislation include discrimination on the basis of:
|race||political opinion||social origin|
|colour||marital status||sexual orientation|
|sex||impairment (including HIV status)||
gender identity inc.transexuality
|age||disability (including physical and intellectual)|
|trade union activity||medical record|
It is important to note that state and federal legislation are in no way uniform in the way they
refer to each of these areas and members should seek advice directly from Professionals Australia if they
have a problem in relation to discrimination.
What can I do about discrimination?
Members should contact Professionals Australia. Sometimes matters of discrimination can be resolved by discussion involving the union. In other cases it may be appropriate to have the matter heard by Fair Work Australia. Alternatively a complaint may be made to the federal Human Rightsand Equal Opportunity Commission or an appropriate state anti-discrimination tribunal.
What is sex discrimination?
Sex discrimination takes many forms. The most commonly reported is sexual harassment.While sexual harassment can affect men and women it principally affects women.
Sexual harassment is any unwanted or uninvited sexual behaviour which is offensive
embarrassing intimidating or humiliating. It has nothing to do with mutual attraction or
Sexual harassment is a very serious issue. It can cause harm and distress and can influence
an individual's work performance. It can also significantly affect the workplace atmosphere
and productivity. It undermines morale efficiency and job satisfaction.
What are the main types of sexual harassment
There are two principal types of sexual harassment.
- Harassment accompanied by employment threat or benefit – for example a supervisor makes unwelcome sexual advances with the clear implication that ifaccepted they will lead to job advancement or if rejected will lead to job demotion or dismissal.
- Creation of a xexually hostile environment – relentless unwelcome sexual conduct in the workplace which interferes with work and creates a hostile abusive offensive orintimidating environment particularly where women are in the minority and the harassment is directed at women generally rather than at the individual.
What are my options in terms of legal redress?
Under the Sex Discrimination Act (a federal law) it is illegal to sexually harass a person in
employment education or in the provision of goods facilities and services. Under the Act if
the complainant felt offended humiliated or intimidated by the conduct and a reasonable
person having regard to all the circumstances would have anticipated that the complainant
would be offended humiliated or intimidated by the conduct then the complaint of sexual
harassment will be upheld.
Often the harasser will claim that he or she did not know the conduct was unwelcome. This is
not relevant under the Act. It is enough that a reasonable person would know it was going to
cause offence humiliation or intimidation.
What is the role of my employer in acting to prevent harassment?
The employer of the person or persons who commit the illegal conduct will also be liable
under the Act unless the employer can show all reasonable steps were taken to prevent the
conduct. Preventative steps would include:
- formulating a policy statement on sexual harassment including the establishment ofan effective complaints mechanism;
- formulating guidelines to prevent sexual harassment;
- conducting staff awareness programs on the issue of sexual harassment;
- taking active steps on learning of the conduct to immediately prevent it occurringagain;
- taking active steps to discipline any employee who has harassed another employee
What can I do about sexual harassment?
In addition to the Federal legislation most States have legislation that makes sexual
harassment illegal. The method of making a formal complaint about sexual harassment is the
same as for any other sort of sex discrimination. As always it is advisable to discuss the
matter first with one of our Industrial Officers. The Industrial Officer can assist you to make a
formal complaint or discuss informal ways to resolve the matter.
To speak with an Industrial Officer contact our Workplace Advice and Support Centre on 1300 273 762.
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