Drawing the line on discrimination Byline goes here
Discrimination in employment can have devastating and far-reaching effects on the would-be target, the workplace culture, and on productivity.
To some extent, employers do need to discriminate between employees as part of the process of hiring and firing.
However, various state and equal-opportunity policies now operate to prevent, as far as possible, unequal treatment on the grounds of a protected personal characteristic.
The Anti-Discrimination Act 1977 (the act) makes it illegal to discriminate on the basis of sex, age, disability, sexual preference, transgender, marital status, race, family responsibility and association.
Direct discrimination of this form is conscious and easily recognisable (“we don’t employ female mechanics”).
Indirect discrimination is less obvious. The appearance of equal treatment is there, but occurs in circumstances where an apparently neutral requirement is imposed with which persons of a particular race or characteristic are less able to comply.
Both direct and indirect workplace discrimination can occur over:
n Recruiting and selecting staff.
n Terms, conditions and benefits offered as part of employment.
n Who receives training and what sort of training is offered.
n Who is considered and selected for transfer, promotion, retrenchment or dismissal.
Differentiating between applicants is an integral part of the process of hiring and promoting individuals.
However, employers should be aware of whether they consciously or sub-consciously are making cultural comparisons based on features personal to the candidate, including how they should look, dress, communicate and how well they will fit into the workplace culture.
In the absence of obvious bias, the employer may be the only one who is aware of the operation of his or her prejudices, thereby making proof the difficulty for the complainant.
However, in relation to cases of racial discrimination in employment, courts in Australia have now accepted that discrimination can operate sub-consciously, but a complainant must be able to show some degree of causal connection between the alleged act and his or her race.
Complainants should take care not to confuse discrimination with legitimate comment and advice about the work-related behaviour of an individual or group.
Options for complainants include:
n Utilising own-workplace policies by complaining to a designated officer and letting the company handle the matter internally.
n A formal complaint to the Anti-Discrimination Board and/or the Human Rights and Equal Opportunity Commission.
n Bringing an action under the act.
n Bringing an unfair dismissal claim (if fired on the basis of a protected personal characteristic).
Barrie Goldsmith is the principal of Australian Travel and Tourism Lawyers. Contact him on 02 9233 4702 or goldlaw@bigpond.com
