Discrimination in the workplace

For free and confidential legal advice about this topic, please contact us here.

Everyone has the right to work without unlawful discrimination. If you are being treated differently because of a protected personal characteristic (for example your race, pregnancy, disability, gender identity or because you have been subject to domestic violence), there are things you can do to make it stop. 

What is discrimination in the workplace?

Discrimination in the workplace happens when you are treated less favourably than others because of some characteristic about you. In Australia, you cannot be discriminated against because of one or more of these characteristics:

• race 
• colour 
• sex 
• sexual orientation 
• breastfeeding 
• gender identity 
• intersex status 
• age 
• physical or mental disability 
• marital status 
• family or carer’s responsibilities 
• subjection to family and domestic violence 
• pregnancy 
• religion 
• political opinion 
• national extraction, or social origin; and/or 
• trade union activity. 

There are two ways you can experience discrimination: 

1. Direct discrimination – e.g., a company says they don’t want to employ you because you identify as Aboriginal. They are discriminating directly against you because you are Aboriginal; or 
2. Indirect discrimination – e.g., your boss says you cannot be a manager because you are a part-time working parent. In this way, you are being treated less favourably than a full-time worker because of your parental responsibilities.  

Discrimination can occur in the job application process (e.g., before you’re even employed), during employment, in relation to certain terms, conditions, benefits or training opportunities at work, promotions, transfers and in the reasons for being fired.

For example, unlawful discrimination can occur in: 

• being refused a job; 
• being fired or having your shifts cut; 
• being denied a promotion; 
• being excluded or isolated by workmates or your boss; or 
• Being treated differently and unfairly compared to your colleagues because of a protected personal attribute. 

Is discrimination against the law?

It is usually against the law for someone to discriminate against you in your employment because you have one of the personal characteristics listed above. There are some exceptions to this, which can be found below under ‘what’s not discrimination?’ 

There are lots of laws which protect you from discrimination, depending on why you’re being discriminated against (e.g., your age or gender identity), and where you live. See the full list of discrimination legislation here. 

What’s not discrimination?

It’s not discrimination if you are treated differently at work for reasons that have nothing to do with your protected personal characteristic (eg poor work performance), or if your attribute means that you cannot meet the job requirements (for example, you need to have a driver’s licence and you aren’t old enough to get one).

There are also times where an employer can legally only employ someone with certain characteristics – e.g., an agency that needs to employ someone who identifies as Aboriginal or Torres Strait Islander. This is called an ‘identified position’. Treating someone differently is not always unlawful. 

Does my boss have to accommodate my disability, or other personal characteristic?

If you have a disability, your employer has a legal duty to make reasonable adjustments to accommodate your disability, to the extent that this would cause the employer unjustifiable hardship. For example, if your disability means that you need a wheelchair, your employer needs to make reasonable adjustments to ensure that the workplace is accessible to you. If it is still not possible for you to perform the inherent requirements of your role even after reasonable adjustments are made to accommodate your disability, it may not be unlawful discrimination.

Employers are also required to consider requests for flexible work arrangements made by any employee who has been employed continuously for at least 12 months, who:

• Is the parent, or has responsibility for the care, of a child who is of school age or younger; 
• Is a carer 
• Has a disability  
• Is 55 or older 
• Is experiencing violence from a member of their family 
• Provides care or support to a member of their immediate family or house-hold who is experiencing family violence 

Discrimination is a complex area of law, and protections vary from state to state. If you’re unsure if you’re experiencing unlawful discrimination, please contact us here for free and confidential legal advice.  

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

Unlawful discrimination is different to workplace bullying and harassment (although sexual harassment is a form of sex discrimination). For information about these areas, click on the links below:

• Discrimination in the workplace is when someone treats you differently (less favourably) based on a legally protected personal characteristic, like being pregnant or having a disability.  For example, it would be discrimination if you don’t get a promotion just because you have a disability.   
• Bullying and harassment are dealt with similarly at law. Harassment is when someone treats you in a way that is offensive, intimidating, humiliating or threatening AND that is done because you have a particular personal characteristic, like your race, being gay, or having a disability. Bullying is when someone repeatedly acts unreasonably towards you and their behaviour creates a risk to your health and safety.  There are different laws which cover these types of behaviour, so please click on our Bullying & Harassment factsheet for more information.
• Sexual harassment at work is a specific type of sex discrimination, being any unwanted or unwelcome sexual conduct in situations where it could be expected might make you feel offended, humiliated or intimidated.

The Australian Human Rights Commission has created a helpful guide to these areas of law, which can be found here.  

What can I do about discrimination?

Everyone has a right to work without unlawful discrimination.  

If you think you are experiencing unlawful discrimination, it is a good idea to seek specific advice about your options, which can include:

Raising the issue with your employer 

It is good to check if your workplace has any policies about discrimination or equal opportunity, and how they can assist to address and resolve the problem.  If your workplace doesn’t have a policy, you can talk to your manager or HR representative about what you are experiencing.  

If you’re nervous about talking to your boss or HR rep, you might want to put the complaint in writing, or have a trusted friend sit in the meeting with you to support you.  You can also prepare for having difficult conversations on the FWO website here. 

If the person discriminating against you is your boss, supervisor, or HR manager and there’s no one else from work to talk to about it, there are other ways to get help.  

Ask your union for help

If you are a member of a union, you can talk to your representative or a union official about what’s going on. They will be able to tell you how they can help, and guide you through the process. Click here if you are unsure which union you can join.

Make an application to a Tribunal or Commission 

If your employer doesn’t properly investigate your complaint, you think their decision is unfair, or your boss is the person who is discriminating against you (and no one else at work can help), there are formal legal options available to you.  

Depending on the type of discrimination and which state or territory you live in, you may be able to make a complaint to the relevant state, territory or federal Commission or Tribunal.  It’s important to get advice about your different options, because there are differences in the protections available, complaints processes and outcomes. 

There are time limits on when you can make a discrimination complaint, and these can range from as short as 21 days to 6 years, depending on the type of complaint.  It is important to get advice promptly to ensure that you make your complaint to the most appropriate agency within the correct time frame.  

Which Tribunal?

If you feel you are experiencing unlawful discrimination, the Fair Work Ombudsman is a good place to begin your enquiry. They can either assist you or direct you to the right tribunal.  Information on the Fair Work Ombudsman process is available here. 

Broadly, there are two main options for filing a formal discrimination complaint: 

• Option 1: The following areas of discrimination are covered by Federal laws, which means you can make a complaint to the Australian Human Rights Commission: 
  • • Sex discrimination 
    • Disability discrimination 
    • Race discrimination 
    • Age discrimination 
    • Discrimination because of an irrelevant criminal record 

You can find more information about each of these areas here and a link to the Australian Human Rights Complaint form here.  

•  Option 2: Every state and territory has their own discrimination board, which can hear matters about the same areas listed above, as well as other areas protected under their own discrimination laws. For a full list of state and territory tribunals and commissions see our page on state-based legal option here.  

People you can talk to for support

If you would like to speak to someone about what is going on at work, we encourage you to contact one of the services we’ve listed below.  

eHeadspace  

eHeadspace offer free counselling to people aged 12 – 25. You can call them on 1800 650 890 (from 9am to 1am Australian Eastern Standard Time. You can also email or chat them online here.  

If you prefer to talk to someone face-to-face, you can make an appointment to visit a Headspace centre. You can find your local centre here.  

Kids Helpline  

You can call the Kids Helpline on 1800 55 1800 for free and private counselling (available 24 hours a day, but there can be a wait to get through). They are happy to talk to young people between the ages of 5-25 years about anything that’s troubling them. You can also email them or chat online here.   

Beyond Blue

Beyond Blue provides free telephone and online counselling to anyone in Australia. You can call a counsellor on 1300 22 4636 or chat online here.   

Youth Law Australia would like to express thanks to Hall & Wilcox and the Fair Work Ombudsman for assisting us with the preparation of this material.