Example
If a worker sends inappropriate messages or images to a colleague, the employer may be liable.
Employer responsibilities
If a worker discriminates, sexually harasses, or vilifies a person in the course of work, the employer is vicariously liable for the actions of their workers.
Employers have the right to take appropriate action against workers who engage in unacceptable behaviour, including:
- formal counselling
- disciplinary action
- dismissal for serious misconduct.
Taking reasonable steps to prevent discrimination and harassment is essential. Reasonable steps may involve:
- developing clear policies
- training staff
- implementing effective complaints procedures.
Understanding vicarious liability
Vicarious liability means employers are legally responsible for the actions of their workers and agents if discrimination, harassment or vilification occurs in the course of work.
What counts as in the course of work
?
The term is interpreted broadly and can include conduct that occurs:
- during work hours or at the workplace
- at employer-sponsored events, such as conferences, training sessions, or work parties
- through emails, text messages, or social media.
Defence to vicarious liability
Employers can defend themselves against liability by demonstrating they took reasonable steps to prevent the discrimination, sexual harassment, or vilification.
Examples of reasonable steps include:
- providing training to all staff on appropriate workplace behaviour and anti-discrimination laws, particularly for supervisors
- creating and regularly updating workplace policies on acceptable behaviour and fair treatment
- establishing fair, confidential, and efficient complaints processes
- displaying educational materials from the Queensland Human Rights Commission in the workplace
- encouraging workers to promote a positive workplace culture.
While each case will be assessed individually, employers are expected to do what is reasonable in the circumstances to prevent discrimination and other unlawful conduct in the workplace.
Exemptions to the Anti-Discrimination Act
The Anti-Discrimination Act 1991 includes several exemptions that allow discrimination in specific circumstances.
These include:
- Welfare measures: Actions taken to benefit members of a group with an attribute.
- Equal opportunity measures: Initiatives to promote equality, such as programs to address under-representation of a group of people with an attribute.
- Genuine occupational requirements: A requirement that is essential to the position.
- Public health – measures reasonably necessary to protect the health of the public.
- Workplace health and safety: Actions that ensure the safety of workers, such as a requirement to wear protective footwear in certain positions.
There are more exemptions that are specific to areas of activity in which discrimination is prohibited, for example, there are other exemptions in the areas of work, supplying goods and services, accommodation, and education.
Temporary exemptions may be granted by the tribunal.
Supporting pregnancy and breastfeeding workers
Under the Anti-Discrimination Act 1991,it is unlawful to discriminate against a person who is:
- pregnant
- presumed to be pregnant or to become pregnant
- breastfeeding or expressing milk.
Reasonable adjustments for pregnancy
Employers should support pregnant workers by making reasonable adjustments to the workplace.
Examples include:
- Modifying tasks, working hours, or duties to accommodate the worker’s health and safety needs.
- Maintaining open communication throughout the pregnancy to address needs as they arise.
Supporting breastfeeding workers
When a person returns to work after giving birth, employers should:
- adjust break times to allow for breastfeeding or expressing milk
- provide a designated, private area for breastfeeding or expressing milk, where possible.
Returning to work after maternity leave
- Workers are generally entitled to their position, or to a comparable position if their position no longer exists.
- Employers should keep employees on leave informed about significant organisational changes.
Preventing discrimination and harassment
Employers can take proactive measures to prevent discrimination and harassment in the workplace. A safe, inclusive, and equitable workplace benefits employees and the business, helping to build trust, improve morale, and enhance productivity.
Contact Officers
Employers can appoint Contact Officers to support employees and help address workplace issues. Although not prescribed by law, this role is widely recognised as a reasonable step to prevent and manage discrimination and harassment.
The role of a Contact Officer includes:
- Educating workers about workplace rights and options for resolving concerns.
- Providing a safe space for employees to express concerns confidentially.
- Raising awareness about workplace rights and responsibilities.
- Offering management recommendations to prevent future incidents.
Supporting Contact Officers
Employers should ensure Contact Officers have the training and resources they need to effectively fulfil their role.
Our Employer Toolkit provides practical resources, templates and guidance to help you create and fair and inclusive workplace – download our Employer Toolkit (PDF, 1.5MB).
Learn more about our training for new and existing Contact Officers.