What is discrimination at work?
Discrimination occurs when someone is treated unfairly because of a protected attribute, for example, their age, sex, race, impairment, religion, pregnancy, parental status, or sexual orientation.
The Anti-Discrimination Act prohibits discrimination at work. This includes all aspects of work, including recruitment, terms and conditions of employment, benefits, training, transfers, promotions and dismissals.
The law applies to all categories of work, including full-time, part-time, casual, voluntary, contract, temporary, or some other working arrangement.
Some examples of discrimination include:
- Refusing to hire someone because of their age.
- Offering less favourable terms or conditions to someone because they are pregnant.
- Denying a promotion to someone because of their disability (impairment).
The Anti-Discrimination Act also prohibits sexual harassment, vilification and victimisation, and other objectionable conduct at work such as unnecessary questions and discriminatory advertising.
Liability for discrimination at work
Employers must take reasonable steps to protect workers from discrimination, sexual harassment, vilification and other objectionable conduct in the workplace. If they do not, they can be held vicariously liable for the actions of their workers and agents.
This means, if you are discriminated against, harassed, or vilified at work, you may lodge a complaint against your employer and the individual subjecting you to this behaviour.
When discrimination may be lawful
There are some circumstances when discrimination at work may be allowed. These are called ‘exemptions’.
Exemptions apply only in limited situations and only when they are reasonable.
Examples include:
Equal opportunity measures
Employers can implement programs designed to promote equal opportunities for particular groups. For example: setting recruitment targets to increase the number of women or First Nations people employed.
Genuine occupational requirements
An employer can discriminate when hiring for a job that genuinely requires that a person have a particular ability or attribute.
For example, considering only members of a particular political party when hiring for a role in the office of a member of parliament.
Workplace health and safety
Employers can restrict workers from performing tasks that may compromise their health or safety. For example, someone with a chronic back condition may not be suitable for physically demanding work.
Employer provided accommodation
An employer may discriminate on the basis of sex where a worker is required to live in employer-provided accommodation and there is no single sex accommodation available and providing single sex accommodation would impose an unjustifiable hardship on the employer.
An employer may discriminate on the basis of relationship status where the work requires 2 people who are both required to live together in accommodation provided by the employer.
Work in a person’s home
A person may discriminate on the basis of any attribute except race when employing a person to perform work of a domestic nature or care for their children in their own home.
Retiring age for partners
An employer may discriminate on the basis of age in relation to a partnership by specifying:
- new partners must not be more than a specified age
- partners must retire at a specified age.
Youth wages
An employer may pay a worker who is under 21 at a rate according to their age.
Unjustifiable hardship
The Anti-Discrimination Act requires that special services or facilities (also called reasonable accommodations or reasonable adjustments) be provided to people with disability (impairment). Where special services or facilities are not provided, this may be indirect discrimination.
For example, a wheelchair user requires minor modifications to their work station to accommodate their wheelchair.
However, an employer is not obligated to provide special services or facilities where this would impose an unjustifiable hardship on them.
Whether supplying special services or facilities imposes an unjustifiable hardship depends on:
- the type of service or facility being requested
- the cost of providing this
- the number of people who would benefit or be disadvantaged by it
- the disruption that might be caused by providing the service or facility; and
- the type of benefit or detriment to everyone concerned.
For example, a person in a wheelchair wants to work 10 hours per week for a small business that operates from premises that are not wheelchair accessible. Carrying out expensive structural changes to make the premises accessible may impose an unjustifiable hardship.
Religious organisations as employers
In relation to organisations established for religious purposes, where it is a genuine occupational requirement for an employee to act in a way consistent with the employer’s religious beliefs, the employer may discriminate against their employee on any basis (except race, age, and impairment) in a way that is not unreasonable, if the person ‘openly acts’ in a way that is contrary to those beliefs.
Whether the discrimination is reasonable depends on all the circumstances of the case including factors such as whether the action taken by the employer is disproportionate to the behaviour, and the consequences for both the person and the employer.
Religious bodies may discriminate on any basis in relation to the ordination, appointment and training of priests, ministers of religion or members of a religious order, and the selection or appointment of people to perform functions in relation to, or otherwise participate in, religious observances or practices.
What you can do
If you believe you’ve experienced discrimination at work, you can lodge a complaint with the Queensland Human Rights Commission.