Highlights
- There are federal, state and territory laws in Australia to protect people from discrimination and harassment.
- Unlawful discrimination in the workplace is when a person treats an employee less favourably than others due to a person's particular attributes.
- Treating someone differently is not necessarily unlawful discrimination.
Every two years, the Diversity Council of Australia publishes the Inclusion@Work Index, a study that maps inclusion and harassment and discrimination across the Australian workforce.
The next Index is being released in December 2021.
What is unlawful workplace discrimination?
Unlawful workplace discrimination occurs when an employer takes adverse action against a person because of certain attributes of the person – such as race, age, sexual orientation, pregnancy or religion.
Meghann Papa is a Senior Lawyer at Anderson Gray Lawyers, based in Sydney.
She says in Australia there are federal, state and territory laws to protect people from discrimination and harassment.
Unlawful discrimination in the workplace is when a person treats an employee less favourably than other employees because they have a particular characteristic such as sex, race, disability, or age.
Under Australia's anti-discrimination laws there are direct and indirect discrimination, Ms Papa says.
"It's also unlawful discrimination when a person requires an employee to comply with a requirement or condition that they're unable to comply with because of their race, age, sex, or disability, and the requirement or condition has, or is likely to have, the effect of disadvantaging that particular employee," Ms Papa explained.
She says an example of this latter type of discrimination would be somebody who has dependent children. If an employee needs to drop-off or pick-up children from daycare for instance, the employer needs to make reasonable adjustment to allow this.
Source: Pexels/Sora Shimazaki
Ms Papa says it could be discrimination, if an employer takes disciplinary action against an employee for not complying with the direction to work additional hours, due to family responsibilities.
But, employees need to ensure that they inform their employers about their circumstances, to ensure that employers are aware so that appropriate adjustments can be made when necessary.
What is adverse action?
The term "adverse action" is used under the Fair Work Act.
Patrick Turner is a Brisbane-based Senior Associate specialised in Employment and Industrial Law at Maurice Blackburn Lawyers.
He says adverse action can refer to actions such as sacking someone; ‘injuring them in their employment’; and altering their position to their prejudice, which are unlawful if taken for particular reasons.
"And when we're talking about those two concepts, that can mean things like, for example, reducing someone's pay, demoting someone, issuing them with a warning".
Adverse action can also include discriminating between employees or threatening to take adverse action, explained Mr Turner. 
Mwanaume afanya kazi Source: Pexels/Ron Lach
Lawful discrimination
Treating someone differently is not necessarily unlawful discrimination.
Under the Fair Work Act, if the employer doesn't discriminate against an employee because of their particular attribute, then it won't necessarily be considered adverse action.
Mr Turner says often discrimination is subtle but there are instances that won't constitute discrimination.
"If you turned up at work drunk and your employer had a policy saying, ‘you need to be sober when you're at work’ and you're issued a warning, then provided that you were being treated consistently with other employees, then just because you might be from a different racial background or might have a disability…" he said.
Performance management
Lisa Annese is the Chief Executive Officer at Diversity Council Australia.
She says employers have legitimate rights to manage the performance of their staff.
Performance management is a separate issue that sometimes gets conflated with discrimination, Ms Annese says.
It is not discrimination to performance-manage an individual with unsatisfactory performance.
Source: Pexels/Sora Shimazak
What to do if you think you are being discriminated
Meghann Papa says if somebody feels that they've been discriminated in the workplace, they should raise the issue with their employer directly.
"Most employers have complaints or grievance processes in place, so they should definitely report the issue at first instance to their employer to try and get the matters resolved."
If the issue can't be resolved in the workplace, then the employee should get advice from, either from an employment lawyer, anti-discrimination lawyer or alternatively, if they're a union member, they can speak to the union.
Mr Turner says it’s important that people know that they have rights available to them.
Federal, state and territory laws
There are federal, state and territory laws in Australia to protect people from discrimination and harassment.
"Broadly, state laws prohibit a lot of the same type of conduct, but there can be not insignificant differences between them," PatrickTurner says.
In some cases, it might be better bringing a claim under state law than under federal law, Mr Turner advises.
Source: Pexels/Andrea Piacquadio
Possible outcomes from a claim for unlawful discrimination
Mr Turner says there are many different outcomes that might arise from a claim for discrimination.
"In some cases you might be reinstated, so [you may be] put back in the job that you're performing; you might receive compensation that can be compensation for economic loss, for example, loss of income," he said.
"If you've lost your job and can't be put back, you might also receive compensation for any injury you've suffered and related distress and humiliation, so it’s [about] how it has made you feel."
Mr Turner says courts and tribunals can make orders too, such as imposing a fine against the employer.
He says people shouldn't be scared about enforcing those rights.
By taking action by standing up to employers when you're discriminated against, you are making life better for everyone who comes after you and for all your other colleagues in the workplace.
Source: Pexels/fauxels
For further information or help visit , or contact Fair Work Infoline on 13 13 94. If you need language help call Translating and Interpreting Service (TIS) on 13 14 50.