Discrimination

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Discrimination occurs when a person is treated unfairly because that person has an attribute or a personal characteristic. For the person to be discriminated against the attribute or personal characteristic must be protected by law.

Grounds of discrimination

Not all attributes or personal characteristics will be grounds of discrimination. That is, not all attributes or personal characteristics are protected by law.

The only personal characteristics on which you can be discriminated against are:

• sex;
• sexuality;
• gender identity;
• relationship status;
• status as a parent or carer;
• pregnancy;
• breastfeeding;
• race;
• religious or political conviction;
• disability;
• industrial activity;
• age;
• profession, trade, occupation or calling;
• association (whether as a relative or otherwise) with a person identified by reference to an attribute referred to in the Act;
• spent conviction or extinguished conviction within the meaning of the Spent Convictions Act 2000.

What’s not discrimination?

Being treated differently is not always discrimination.

For example, it is not discrimination if:

• you are treated differently at work because you have performed poorly and it not because of a personal characteristic (like your race, age or gender);  
• you don’t get a job because you don’t meet the job requirements (for example, you need to have a driver’s licence and you aren’t old enough to get one); or
• you are treated unfairly because of a personal characteristic that is not protected (eg you do not receive a promotion because you are overweight).

What’s the difference between discrimination, harassment and bullying?

Discrimination is different from sexual harassment and bullying.

Sexual harassment is sexual behaviour which offends you, or makes you feel humiliated or intimidated.. Check out the Sexual Assault & Sexual Harassment page for more information.

Bullying can overlap with discrimination, but not always. Bullying can include verbal or physical abuse, such as yelling, screaming or offensive language or even non-physical or non-verbal actions, such as isolation. In some instances (like at work), bullying is against the law. Check out the School Bullying page for more information about school bullying.

Discrimination in your Employment

Your employer and coworkers cannot discriminate against you when you work for them or when they are interviewing and hiring you.

Some common forms of less favourable treatment in the workplace include:

• being denied access to training, transfers and/or promotions;
• being subject to unfair terms or conditions of employment;
• having your employment terminated;
• having your shifts cut down;
• consistently having to do the most difficult or worst work when others do not have to do the work;
• being excluded or isolated;
• working for unequal pay; or
• having derogatory statements made about you.

If you are treated in the above ways, because you have a personal characteristic, that is protected by law, then this may be discrimination.

In certain situations, your employer may have to do more to ensure that you aren’t indirectly discriminated against in your workplace. For example, if you have a disability, your employer may need to make reasonable adjustments at the workplace such as introducing a ramp for wheelchair access or employing read-aloud software programs for the visually impaired.  

Even if your manager or colleagues are treating you less favourably, your employer may still be responsible for the discrimination.

Exceptions to Workplace Discrimination:

There are also exceptions to discrimination laws that affect teenagers and children specifically:

• Where age prevents the employee from carrying out the inherent requirements of the position. An example of this is seeking a job where you need to drive but you are not old enough to qualify for a licence.
• An employer is permitted to discriminate against youth in respect of their pay. Youth can be paid a percentage of the pay of adults in the same industry.

These are some exceptions when you have a disability:

• Employers are able to discriminate against people that are disabled if the employee would be unable to complete the essential tasks of the job and no reasonable adjustment would help them be able to complete the job. An example of this might be where a paraplegic seeks employment as a tap dance instructor. An employer may recognise that regardless of any assistance they give, the person in the wheelchair will still be unable to use their legs to lead a dance class.
• An employer can discriminate against the disabled if employing the person will result in unjustifiable hardship to the business.

Discrimination at School

Discrimination laws for schools, universities or other training organisations aim to make sure that all students are treated the same way and given the same opportunities as other students. You don’t have to put up with discrimination at school.

What kind of discrimination may occur in school?

A school may treat you unfairly on the basis of a ground of discrimination by:

• Refusing to enrol you;
• Denying you something that they provide to other students; or
• Expelling you or subjecting you to some other negative treatment.

Exceptions

Not all forms of discrimination are against the law. Sometimes schools can make rules or decisions that discriminate against students.

For example, a school can refuse to enrol you if:

• it is a single sex school and you are of the opposite sex;
• the school is for students above a certain age and you are not above that age;  
• the school only assists students with a certain disability and you do not have that disability; or
• it would be unjustifiably hard for the school to provide the necessary resources or services required because of your disability. It is a case of weighing up the pros and cons. For example, if the school can prove that it cannot pay for your adjustment, it can usually claim unjustifiable hardship and refuse to enrol you.

Discrimination in your sport or club

Clubs

It is against the law for a club or association to discriminate against a person based on a characteristic by not allowing them membership or by allowing them membership on certain terms and conditions. An exception to this is the right to refuse membership to a certain sexes or to those with certain disabilities, if the club or association caters only to a certain sex or the person seeking membership is not disabled. Clubs that cater to people with specific characteristics are allowed to exclude others if the club is mainly intended to benefit people with that characteristic.

Sports

Participating in sports can be hindered by people who exclude people with certain characteristics from playing. Though discrimination isn’t allowed generally, there are some exceptions with playing competitive sports.

• SEX: Girls, boys or intersex people cannot be excluded from participating in competitive sports until the age of 12. After the age of 12, they may be excluded if strength, stamina or physique is important in playing the sport.
• DISABILITY: Though it is generally unlawful for someone to exclude people with disabilities from playing sports, if someone’s disability prevents them from reasonably playing the sport, then they can be excluded from playing. For instance, a paraplegic is unlikely to be able to play soccer.
• AGE: People are free to exclude people of a certain age from playing competitive sports organised for certain age groups. These exclusions prevent people that are 14 years old from playing in under 10’s sport. Age differences in the team may affect the outcome of the game and people’s ability to improve and play.  

What can you do about discrimination?

Everyone has a right to a safe workplace without unlawful discrimination.  If you think you have been discriminated against, it’s a good idea to:

1.  Talk to your employer

The first step is to see if your work has any policies about dealing with discrimination. You can ask your HR representative for a copy.  If it does, it might have information about how to resolve the problem.  If your workplace doesn’t have a discrimination policy, you can talk to your manager or HR representative about what’s happening.

If you’re nervous about talking to your manager or HR representative, you might want to put the complaint in writing, or have a trusted friend sit in the meeting with you to support you.

2. If you are a member of a union

You can talk to your union representative about what’s going on. They may be able to provide you with some advice or assistance about dealing with the issues.

3. Make a complaint to a government agency

If your employer doesn’t properly investigate your complaint, or you think their decision is unfair, you can make a complaint to a government agency.

Depending on the type of discrimination or harassment, you may be able to make a complaint to different government agencies.  It’s important to get advice about the different agencies, because there are differences in the complaints processes.

There are time limits on when you can make a discrimination complaint, that’s why it’s a good idea to get advice as soon as possible so that your complaint is valid.

Please contact the following organisations to find out who you should make your complaint to:

• The Australian Human Rights Commission on 1300 656 419 or (02) 9284 9888 or visit their website at: https://www.humanrights.gov.au/complaint-information. They can provide information about the various organisations you can complain to and the advantages and disadvantages of each.
• ACT Human Rights Commission on (02) 62052222 or visit their website at https://hrc.act.gov.au/complaints

Complaints are usually resolved through ‘conciliation’, where you sit down with your employer and an officer from the government agency and have a chat about what happened and what can be done to resolve the complaint; ideally coming to an agreement. This may include an apology or, in some circumstances, compensation.

But sometimes this process does not lead to an acceptable outcome. You then have the option of taking the complaint to a tribunal or court. However, you should not go to court or a tribunal without getting legal advice and representation first. It is often available for free!

Who can you talk to for support?

If you would like to speak to someone about what is going on at work, you can talk to someone from Headspace or Kids Helpline. They are free and confidential counselling services for people under 25. You can call them or chat online at:

• Kids Helpline: 1800 55 1800 FREE and www.kidshelp.com.au
• Headspace: 1800 650 890 FREE and www.eheadspace.org.au

If you are over 25 and you’re feeling down because of something that’s happening at work, please contact Beyondblue on 1300 22 4636.

If you’re under 25 and you have a question about discrimination that we haven’t answered here, please ask us a question here and we can give you some free information and advice.