Discrimination in the workplace

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Everyone has the right to a workplace that is free from discrimination and harassment.   If you are being discriminated or harassed because of some personal characteristic (for example your race, religion, age, gender or sexual orientation), 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 and not because of your ability to do the job.   For a list of characteristics that the law protects, see the section below ‘Is discrimination and harassment against the law?”

Example based on real life:  Dinesh works at a bar.  He was born in Sri Lanka.  His boss took him off the roster because she couldn’t understand him.  When he spoke to his boss about it, she said “I’m not a racist but I cannot understand you.” The court decided that this was discrimination on the basis of Dinesh’s race and Dinesh was awarded $1,000 in compensation.

Discrimination can occur in the job application process, the conditions of employment, benefits and training opportunities, promotions, transfers and reasons for being fired.

It can include:

  • being refused a job;
  • being fired or having your shifts cut down;
  • being denied training opportunities, transfers or promotions;
  • not being paid the same as someone else doing the same job, with the same experience and qualifications;
  • an employer or fellow workmate deliberately withholding information you need to do your job;
  • being excluded or isolated by workmates or your boss; and
  • being given an impossible task.

What is harassment?

Harassment in the workplace is any unwanted behaviour that offends or humiliates you, makes work a hostile environment and is targeted at you because of a personal characteristic.

Example 1: Bill says his workmates call him ‘queenie’ at work and talk in a ‘camp’ tone around him because they found out he is a same sex relationship.  

Example 2:  Sam works as a shop assistant at a clothes shop.  The other workers there constantly say mean things to him because he has autism.  They regularly say things like “hey special Sam” and make other jokes about him.  This is harassment based on Sam having a disability (autism) and is against the law.

Is discrimination and harassment against the law?

It may be against the law for someone to discriminate against you or harass you in your employment because of the following personal characteristics:  

  • race, colour, nationality or social origin;
  • sex, intersex status, gender identity or sexual orientation;
  • age;
  • medical or criminal records;
  • physical, intellectual, psychiatric or mental disability;
  • marital or relationship status or family or carer’s responsibilities;
  • pregnancy (or potential pregnancy) or breastfeeding;
  • religion;
  • political opinion; or
  • trade union activity.

Sexual harassment is any unwanted or unwelcome sexual behaviour which makes a person feel offended, humiliated or intimidated. If you are being sexually harassed at work, you will find more information here

In some cases, it can also be discrimination or harassment if someone treats you differently or offends you at work because of someone you know or are related to who has a particular characteristic (for example, you have a brother who is gay).  If you think this has happened to you, you may also be able to make a complaint about discrimination or harassment.

You can find out about the different protections against discrimination by completing the FWO’s Diversity and Discrimination Course here.

What's not discrimination?

It’s not discrimination if you are treated differently at work for reasons like having poor performance and it has nothing to do with a personal characteristic (like your race, age or gender), or if 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). Treating someone differently is not always unlawful.

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

Discrimination is when someone treats you differently (less favourably) based on a particular 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.

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 being gay, are from another country, or having a disability.  

Bullying is when someone repeatedly acts unreasonably towards you and their behaviour creates a risk to your health and safety.  Bullying can also be harassment under anti-discrimination laws if it involves targeting you because of a characteristic (like coming from another country, or having a disability).   For more information on workplace bullying and what you can do about it, see our separate factsheet on it: https://www.fairwork.gov.au/employee-entitlements/bullying-and-harassment.

If you think you are being bullied or harassed you can contact the Fair Work Infoline on 13 13 94 and they can give you more information about what your best options are.  

What can you do about discrimination and harassment?

Everyone has a right to a workplace free from unlawful discrimination and harassment.  If you think you have been discriminated against, it’s a good idea to:

Try to talk to your employer about it

The first step is to see if your work has any policy about discrimination or harassment and what to do about it. 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 policy, you can talk to your manager or HR representative about what’s happening.

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 practice having difficult conversations on the FWO website here.

If you are a member of a union, you can talk to your representative about what’s going on. They may be able to get your employer to do something about the problem.

Make a complaint to a Tribunal

If your employer doesn’t properly investigate your complaint, or you think their decision is unfair, you can make a complaint to the relevant Commission or Board about workplace discrimination.

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

There are time limits on when you can make a discrimination complaint, and these can be as short as 21 days.  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:

Fair Work Info line on 13 13 94 or send an online enquiry

Australian Human Rights Commission on 1300 656 419 or (02) 9284 9888(02) or visit their website at: https://www.humanrights.gov.au/complaint-information.

The Commission or Board in your State or Territory

Victorian Equal Opportunity and Human Rights Commission – http://www.humanrightscommission.vic.gov.au/

For more information about discrimination and harassment at work, you can also visit this factsheet.

People you can 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 a free and confidential counselling service for people under 25. You can call them or chat online at:

Kids Helpline: 1800 551 800 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 224 636.

Where can I get further help?

Employees can test their knowledge about pay in the FWO’s Workplace Basics Quiz, available here.

For information and advice about the Fair Work System including your rights, entitlements and obligations, visit the Fair Work Ombudsman website or call the Fair Work Info line on 13 13 94.

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

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.

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