For businesses, the fast-paced world has inevitably meant a rapidly changing world of work.
In Australia, the Discrimination Act and numerous pieces of legislation are put in place to protect people from being treated differently by their employers and other employees in and out of the workplace.
While the conversation around equality and eliminating workplace discrimination has become louder over the years, one thing has become abundantly clear—even the best intentions often fall short.
From unconscious biases to employee conduct, creating a truly fair and inclusive workplace is much harder than it may appear. That's why we're giving you a complete guide to how businesses can strategically make a fair work environment for all.
Let's start from the top.
Unlawful discrimination vs discrimination
While no form of discrimination should be accepted in your workplace, it's important to understand the difference between unlawful discrimination and discrimination.
Treating individuals differently isn't necessarily unlawful discrimination or unlawful behaviour.
At work, it may even be necessary for general performance management to enlist different management methods for different roles and team members.
The Fair Work Act covers certain protected attributes (like sexual orientation and religion) that are shielded from adverse action.
If this list of protected attributes doesn't have any role to play in the adverse action that's taken, the act may not be one of unlawful discrimination. Even if one or more of the protected attributes applies to one of the parties involved.
What is unlawful discrimination in the workplace?
The unfair treatment of one employee over another often happens on discriminatory grounds.
These behaviours can stem from prejudice against certain group/s of people and can be deeply embedded in an individual's behaviours and mindset. This means that dismantling these behaviours can prove to be a challenge.
Attributes protected from unlawful discrimination at work
The protected attributes under the Fair Work Act (FWA) are:
- Sexual orientation
- Gender identity
- Intersex status
- Physical or mental disability
- Marital status
- Family or carer’s responsibilities
- Political opinion
- National extraction
- Social origin
- Family and domestic violence
This means if an employer takes adverse action against any person on these protected attributes, this adverse action could be against the law and will mean your employee has been unlawfully discriminated against.
When can discrimination take place?
Even though we're talking about promoting equality and dismantling discrimination at work, it's important to remember that discrimination takes many forms.
It can also take place at different points in the employment relationship, which means workplace discrimination doesn't necessarily need to take place within your office premises or be blatantly obvious.
Workplace discrimination can take place in the:
- Recruitment and selection of staff
- Structuring of terms, conditions, and benefits you're offering as part of your employment package
- Decisions regarding who is considered and selected for training opportunities, and the types of training on offer
- Consideration and selection of employees who are eligible for transfers or promotions
- Decisions about which employees are considered and selected in a redundancy process or dismissed from employment
The legal entitlements of employees to a workplace environment that's equitable and free from discrimination start as soon as a prospective employee interacts with your business.
The different types of discrimination
We already covered the difference between unlawful and general acts of discrimination. But there are also different ways discrimination and inequality can manifest.
Direct discrimination is when an employer treats a member of staff unfairly or differently without a legitimate or real reason due to their characteristics.
For example, if an employer turns down an employee for a promotion because they’re pregnant. Being pregnant doesn’t necessarily mean they’re incapable or shouldn’t be considered for the role.
Indirect discrimination is when a certain rule has a negative effect on a group of people.
For example, if an employer sets down a policy of not employing people with “gaps” in their resumes. This could adversely affect people who had to take time off work for reasons related to a disability or caregiving responsibilities.
Harassment is either physical or verbal behaviours that offend or humiliate the receiver. This also includes sexual harassment and disability harassment.
Harassing behaviours are generally persistent, but one-time incidents of harassment can also occur. Unwelcome and/or offensive comments and jokes about a person's age, sex, marital status, disability, and race are just some examples of harassment that may take place in the workplace.
However, an incident such as a member of staff circulating rumours about their colleague is also a form of harassment. Being conscious of all the forms harassment can take will help you identify harmful behaviours and patterns and put a stop to them before any real damage can take place.
How to create an environment free from discriminatory practices
Promoting equality and preventing discrimination in your workplace is much more than a one-time effort. It has to be an ongoing commitment with dedicated monitoring, assessment, and a celebration of successes.
Being proactive can go a long way in preventing discriminatory practices from taking root in your operations.
Eliminating discrimination when hiring
During the recruitment process, you need to make sure your job posting doesn't use discriminatory language or exhibit any biases against groups of people.
When interviewing, your hiring team should be consistent in their treatment of applicants. This includes refraining from requesting unrelated information (like an irrelevant criminal record) from candidates, maintaining records of their decision-making, and ultimately selecting the best person for the job putting aside any personal biases or stereotypes.
Regular training and awareness-building exercises can help your recruiters put their best foot forward.
Eliminating discrimination during employment
Once you've onboarded the perfect candidate:
- Have the right policies and employee handbooks in place, so employees feel seen and protected from the get-go and know what to do to keep your workplace safe.
- Educate your employees by providing regular training.
- Share the steps you’re taking to tackle any workplace discrimination. Including your procedures to deal with complaints and grievances from employees.
- Set benchmarks and track your progress to reaching them. This is necessary for you to identify improvement areas and make changes to maintain a fair and inclusive work environment.
- Celebrate your success stories to boost morale and reinforce your business' dedication to the values you've set.
Which laws impact discrimination and equality in Australia?
There's a complex Australian human rights legal landscape, which includes state and territory laws, as well as overarching federal laws. For example, you may be held to territory anti-discrimination laws as well as federal discrimination laws.
Some of the laws you should be aware of are:
- The Sex Discrimination Act
- Disability Discrimination Act
- Age Discrimination Act 2004
- Disability Discrimination Act 1992
- Racial Discrimination Act 1975
- The Australian Human Rights Commission Act 1986
- The Fair Work Act 2009
Among many other laws that are designed to protect people from workplace discrimination as a result of their nationality, national extraction, religion, social origin, medical and criminal records, political opinion, and trade union activity.
Some state and territory laws also protect Australian employees from discrimination based on additional personal characteristics.
Getting the support you need to create a fair and equitable workplace
If your goal is to prevent discrimination in your workplace, it's important to acknowledge that while some forms of discrimination (racial hatred, discrimination based on a person's sex, ethnic origin, or religious beliefs) are easy to spot, others are not.
Discrimination based on certain personal characteristics and what is considered discrimination can be difficult to pinpoint. Especially if it manifests in different treatment, the benefits offered to a person, and a lack of equal opportunity at work.
Gain 24/7 employment relations advice
Navigating the law is often difficult, which is why BrightAdvice offers you access to independent legal advice from a team of employment relations advisers.
Our team is available 24/7 to field your questions and offer you advice on the best course of action for your unique circumstances.
Plus, our advice is supported by BrightBase—our library of expertly written HR document templates—and BrightLightning—our instant question-and-answer tool with over 10,000+ expert-backed answers. Giving you end-to-end, cost-effective support in meeting your compliance requirements, minus the hefty legal fees.
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