What is Discrimination?
Unlawful workplace discrimination occurs in the workplace when an adverse action is taken against an employee due to a protected attribute such as; Race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or care’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
It is unlawful, regardless of the company size, to discriminate against an employee. This includes full time, part time, casual, probationary, apprentices / trainees and individuals employed for fixed periods of time. It is also unlawful to refuse to hire a prospective employee based on the attributes listed above.
Example: Unlawful Discrimination
Mark is employed as a waiter at a restaurant and was told that his employment would be terminated on his 65th birthday. The company wrote to mark stating that “it is the policy of the company to not employ any staff that attains the retirement age, which in your case is 65 years”. Mark responded by explaining that his ability to perform his role as a waiter would be no different upon turning 65 and that his employment should be reconsidered. The company chose to ignore Mark’s requests which prompted to Mark to make an adverse action claim against the company on the grounds of discrimination.
It is important to understand that a person’s employment status, opportunity for promotion or consideration for employment is not treated unfavourably when the requirements of the position can be performed regardless the above attributes. If Mark’s performance had been poor leading up to the termination, and were highlighted as the grounds for his dismissal, the company would be protected from his adverse action claim.
In some circumstances, an action may not be considered discrimination such as;
The action is permissible under State or Territory LawThe action is based on the inherent requirements of the position concernedThe action is taken in good faith due to a person’s religious beliefs, in attempt to avoid injury to those religious beliefs.
Example: What is NOT unlawful discrimination
Amanda applied for a Bar Attendant position at her local RSL club. The RSL refused to employ her as she is under the age of 18 which is the legal age required to be able to serve alcohol.
Amanda’s ability to perform bar attendant duties for the requirements of the position is not in question. The Law however, does not allow for Amanda to serve alcohol and thus the company have taken action that is not deemed to be unlawful discrimination.
Feel free to contact us on (02) 8882 9694 if you have any queries surrounding discrimination.