Dealing With Work Place Discrimination

When an employee is treated differently or less favorably from the other at the same place of work – it is discrimination.

Discrimination is not always against the law; as in the case of remuneration. Remuneration differs from person to person depending on their experience and skills. However, there are certain other factors on which an employer cannot practice “partiality” or “discrimination”.

The LAW in every country lays down proper legislations to ensure that each citizen is treated the same and considered on a level playing ground, ensuring equality, minority support, reduce exploitation of lesser privileged, etc.

In every country, equal opportunities legislations or acts focus to create a level playing ground, thus people are identified, employed, compensated, trained and appraised for their merits, skills, abilities and dedication to work.

Discrimination at work is a vast topic and it could mean quite a lot, namely, discrimination based on sex, minority community being refused privileges at work and the same opportunity being offered to the majority or dominant community, for being married or being in a civil partnership, gender reassignment, pregnancy and maternity issues, sexual orientation, disability other than serious mental disorders, race, caste, color or creed, nationality, religion or faith/belief, age, for being a part-time worker or fixed-time worker etc,.

Under the Australian federal and state legislation, discrimination occurs when an individual or a group is treated less favourably than the other because of their race, colour, ethnic origin, sex, sexual preference, marital status, age, disability, family or carer’s responsibilities, religion, political opinion and trade union activity; or any other characteristic specified under anti-discrimination or human rights legislation.

Here we will be assessing what is discrimination at work, gravity of the topic and the various legislations / acts formulated to counter discrimination to make any work place a level playing ground for all.

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TYPES OF DISCRIMINATION AT WORK

Discriminates occurs when judgements are made about an individual based on race, gender, age, religion, sexual orientation, disability, being pregnant, etc. Any employer, line-manager or a potential employer have made judgments about any individual based on above factors, it is workplace discrimination.

Generally discrimination cannot be pinpointed to one action or event but generally are a combination of issues.

Examples include:

missing out opportunities like transfers, promotions,

being paid lesser than another for the same job-with the same experience / qualifications,

employer purposely withholding information that one requires to do his / her job,

verbal abuse / physical torture,

being excluded or isolated by workmates or your boss,

being given an impossible task – with a motive of implicating for not achieving what was required of that task.

LAWFUL WORKPLACE DISCRIMINATION

Every individual have unique qualities, traits and characteristics. Identifying and distinguishing qualities or characteristics are not always discrimination. For example, in performance management, discrimination is seen as a constructive practice; as this isolates non-performers from the performers.

Additionally, as Fair Work Act-2009 states, under specific circumstances, an action taken would not be considered as discrimination if it is permitted under state or territory anti-discrimination laws or is an action undertaken based on the unalterable needs of the person.

UNLAWFUL WORKPLACE DISCRIMINATION

Unlawful discrimination, according to iHR Australia, 2008, is any hostile action that an employer makes towards an existing or potential, full-time or part-time employee based on attributes such as race, colour, sex, religion, marital status, etc.

Employers cannot discriminate based on above characteristics during short-listing of candidates, selection, recruitment, appraisals/promotions, training and dismissals. Employees who have been subject to unlawful discrimination could seek remedy from bodies like Australian Human Rights Commission (AHRC) or Fair Work Australia.

DEALING WITH UNLAWFUL DISCRIMINATION

In the state of Victoria, complaints can be lodged in writing within 12 months of discrimination to either AHRC or Victorian Equal Opportunity & Human Rights Commission. The received complaint is investigated by an officer appointed by this Commission – investigation should include a written explanation from employer. If the complaint is valid and holds substance the commission will summon “conciliation”.

“Conciliation” is a private discussion where both parties try to arrive at a resolution of their complaint.

Similarly, if an employee gets terminated on grounds of unlawful discrimination, they should lodge the complaint within 60 days to Fair Work Australia.

Remedies from the tribunal or the court are in the form of compensating the employee by a payment or re-instatement of his/her employment.

Australian law recognises two approaches to discrimination; DIRECT DISCRIMINATION and INDIRECT DISCRIMINATION.

Direct discrimination occurs when an employee is treated unjustifiably in comparison to another employee, due to the possession of an attribute that employer considers favourable. For example, an employee is not promoted because she is a woman.

Indirect discrimination is difficult to assess and less apparent as it takes into account the effect of the discriminator’s action on the victim as opposed to the attributes of the victim. For example an employee has difficulty attending early morning meetings because of family responsibilities.

Four types of discrimination that is prevalent in Australia and the acts that are intended to protect victims from discrimination.

AGE DISCRIMINATION & THE AGE DISCRIMINATION ACT OF 2004

Age discrimination, according to the Australian Human Rights Commission, is the act of treating employees or prospective employees unjustly and unfairly due to their age.

The Age Discrimination Act 2004 states that it is unlawful to treat individuals unjustly because of their age. This Act aims to protect both older and younger Australian citizens.

Age discrimination can occur in two ways: direct and indirect.

When an employer rejects a candidate or potential employee considering his age, it is termed as direct age discrimination.

When an employer uses a condition or requirement that is applicable to all candidates; and if that requirement inconveniences a person because of their age, this is termed as Indirect age discrimination.

Age Discrimination Act allows for exceptions as well; particularly for state laws, health programs or youth wages. Which means, under the ADA (Age Discrimination Act), it is not unlawful to provide a benefit to a particular age group where the action was meant to meet a need that arises from that age group.

Example Age Discrimination: The case against an Australian government department, published in ‘The Commissions’ 2002-2003 Annual Report; here the employer agreed to compensate him by paying $15,000. The claim was by an employee alleging that he was subjected to offensive comments about his age due to which he developed a psychiatric condition which made him unfit for the job; and later he was dismissed.

SEX DISCRIMINATION & THE SEX DISCRIMINATION ACT OF 1984

Sex discrimination, according to Australian Human Rights Commission, is the act of treating people unfairly because of sex, marital status, because they are pregnant or might get pregnant or for family related responsibilities.

It also focuses on principles of equality for women and men.

Sex discrimination can occur two ways: direct and indirect.

Direct sex discrimination occurs when a company compensates men more than women for doing the same work.

Indirect sex discrimination occurs when employees are treated the same, yet dis-advantages a person because of their sex or marital status – this situation arise due to NATURE OF JOB. If situation is unreasonable, it could be indirect discrimination and this might depend on the person; if he / she feel they are discriminated for the nature of work, then they could raise an issue.

Example: Sex Discrimination: Claim against JP Morgan banking analyst Brian Johnson, as published by Vanda Carson in The Sydney Morning Herald Newspaper, February 3, 2011; where the bank settled the case confidentially out of court.

This claim was brought by Johnson’s former colleague, Kylie Reynolds – alleging unlawful discrimination based on her sex.

Pregnancy Discrimination occurs when a woman is treated unfairly because she is pregnant or might become pregnant in future. If this employee is refused employment or promotion, avoided from training, demoted – it is discrimination.

DISABILITY DISCRIMINATION & THE DISABILITY DISCRIMINATION ACT OF 1992

According to the Australian Human Rights Commission, Disability discrimination is the act to discriminate against a person because of their disability.

The Act covers people who are relatives, friends and carers of people with a disability.

Disability discrimination occurs in two ways: direct and indirect.

It is not unlawful for an employer to NOT give employment to anyone – if he cannot execute the inherent requirements of a job.

Employer needs to consider whether the person can perform the job requirements with ‘reasonable adjustment’ for the disability. Furthermore, it is not unlawful for an employer to provide reasonable adjustment when a person with vision impairment performs a clerical job with voice activated software it would impose an ‘unjustifiable hardship’.

Example: Disability Discrimination: A claim against a Logistics company as published in The Commission’s 2002-2003 Annual Report; where the employer agreed to re-instate the complainant and pay $52000 in compensation for lost wages, superannuation and legal costs.

The claim was brought by an employee who worked as a warehouse supervisor alleging he was terminated after a workplace injury because his employer felt he was unable to perform the inherent requirements of his position and didn’t check whether there was any reasonable adjustment that would assist him perform his duties.

Genetic Discrimination: The Barlow-Stewart and Keays survey identified three cases of genetic discrimination by employers against current employees. In these cases the individuals were subject to genetic tests to check for early on-onset of Alzheimer’s disease or Huntington’s disease. As a result a person’s employment was terminated and in the other case the employee was demoted. However, this kind of discrimination is not very prevalent in Australia.

RACIAL DISCRIMINATION & THE RACIAL DISCRIMINATION ACT OF 1975

According to Australian Human Rights Commission, Racial discrimination is to treat someone less favourable because of his or her race, colour, descent, national or ethnic origin. This is known as ‘direct discrimination’.

To make everyone satisfy the same criterion when the effect is that a higher proportion of people of one ‘race’ cannot satisfy it, unless the criterion is reasonable and relevant to the particular circumstances; this is Indirect racial discrimination.

The objective of Racial Discrimination Act is to provide and secure adequate advancement of a group, or individuals in that group, which could have been affected by historic disadvantage; thus helping them to enjoy and implement their human rights in full equality.

LAWS CONSIDERED

Laws considered at a federal level (Australian Human Rights Commission has statutory liability under them):

Age Discrimination Act 2004

Australian Human Rights Commission Act 1986

Disability Discrimination Act 1992

Racial Discrimination Act 1975

Sex Discrimination Act

Under Commonwealth law and state and territory laws, following Acts are actioned upon:

Australian Capital Territory Discrimination Act 1991 (ACT)

New South Wales Anti-Discrimination Act 1977 (NSW)

Northern Territory Anti-Discrimination Act 1996 (NT)

Queensland Anti-Discrimination Act 1991 (QLD)

South Australia Equal Opportunity Act 1984 (SA)

Tasmania Anti-Discrimination Act 1998 (TAS)

Victoria Equal Opportunity Act 1995 (VIC)

Western Australia Equal Opportunity Act 1984 (WA)

CONCLUSION

Achieving ZERO DISCRIMINATION AT WORK is the objective of related laws and legislations.

Employers should adopt measures to prevent discrimination – this can be achieved by:

distributing / promoting the policy at all levels of organization,

provide policy information for new staff,

train managers to ensure a discrimination-free workplace,

Consulting professional associations, trade unions, Australian Human Rights Commissions when developing anti-discrimination policies.

The Australian Human Rights Commission has developed guidelines for employers, keeping in mind effects of discrimination at work.

This ensures that:

best person gets the job,

employees work productively without discrimination fears,

positive, co-operative / harmonious work environment is achieved,

best employees are promoted,

right employees are trained in the right skills.

Discrimination claims & awards of damages are also costly; thus it is important that employers take necessary precautions to prevent unlawful conduct from occurring. Compensation cap is in-existent in most discrimination jurisdictions; and mostly discrimination rulings are attractive, particularly to high earning or potentially-high earnings individuals.

To tackle workplace discrimination and harassment, the Commonwealth Government, state and territory governments have established anti-discrimination laws to safeguard employees.

Laws and acts exist, legislations could guide, yet it is just “humane” if discrimination of any nature could be avoided.