Workplace Relations
Workplace Discrimination: Employer Liability and Prevention
Workplace discrimination is unlawful, costly, and damaging to your business. Under Australian law, employers can be held vicariously liable for discriminatory conduct by their employees unless they can prove they took all reasonable precautions. This guide explains the types of discrimination, your liability, and how to protect your business.
What the Law Says
Multiple pieces of legislation prohibit workplace discrimination:
- Age Discrimination Act 2004
- Disability Discrimination Act 1992
- Racial Discrimination Act 1975
- Sex Discrimination Act 1984 (including positive duty provisions)
- Fair Work Act 2009, Part 3-1 — General protections against adverse action on discriminatory grounds
- State and territory anti-discrimination legislation
Protected attributes include age, disability, race, sex, sexual orientation, gender identity, intersex status, pregnancy, religion, political opinion, marital status, family responsibilities, and more.
What Employers Must Do
Develop anti-discrimination policies
Clear policies covering all protected attributes, defining discrimination and harassment, and outlining reporting procedures and consequences.
Train all employees regularly
Annual anti-discrimination training for all staff, with additional training for managers on handling complaints and making fair decisions.
Ensure fair recruitment processes
Job ads, selection criteria, interview questions, and hiring decisions must all be free from discriminatory bias.
Provide reasonable adjustments
Employers must make reasonable adjustments for employees with disabilities unless doing so would cause unjustifiable hardship.
Investigate complaints promptly
Take every discrimination complaint seriously and investigate following natural justice principles.
Review decisions for bias
Regularly audit HR decisions (hiring, promotion, termination) for patterns that may indicate systemic discrimination.
Common Mistakes and How to Avoid Them
Mistake: Assuming good intentions protect you
Fix: Vicarious liability does not require intent. If an employee discriminates, the employer is liable unless reasonable precautions were taken.
Mistake: Not providing reasonable adjustments
Fix: Refusing to make reasonable adjustments for disability is discrimination. Assess each request on its merits.
Mistake: Using discriminatory language in job ads
Fix: Phrases like "young and energetic" or "native English speaker" can constitute discrimination. Review all job ads for bias.
Mistake: Retaliating against complainants
Fix: Victimisation of someone who makes a discrimination complaint is a separate offence with its own penalties.
Penalties and Consequences
Discrimination claims can result in compensation for economic loss and hurt, humiliation and distress, penalties under general protections provisions of up to $469,500 for companies, Australian Human Rights Commission compliance notices, and significant reputational damage.
When to Get Professional Help
Jordan Firme Business Consultants helps employers develop anti-discrimination frameworks, conduct training, investigate complaints, and build genuinely inclusive workplaces.
Frequently Asked Questions
Employers can be held legally responsible for discriminatory acts committed by their employees in connection with work. The only defence is to prove that all reasonable steps were taken to prevent the discrimination, such as having policies, training, and complaint procedures in place.
Discrimination occurs when a person is treated less favourably because of a protected attribute (direct discrimination) or when a requirement that appears neutral disproportionately disadvantages people with a particular attribute without reasonable justification (indirect discrimination).
You can ask whether the candidate can perform the inherent requirements of the role, with or without reasonable adjustments. You should not ask broad questions about health or disability that are not relevant to the specific role.
Since December 2023, employers have a positive duty to take reasonable and proportionate measures to eliminate discrimination, sexual harassment, and victimisation as far as possible. This requires proactive action, not just responding to complaints.
Timeframes vary by jurisdiction. Federal complaints to the AHRC generally must be lodged within 24 months. State and territory timeframes range from 12-24 months. General protections claims under the Fair Work Act must be lodged within 21 days of dismissal.
Need Help With Discrimination Prevention?
Our HR consultants develop anti-discrimination frameworks, conduct training, and investigate complaints.
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