Lawful Workplace Discrimination and Remuneration

When an employee is treated differently or less favorably from the other at the same place of work – then 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 society / country lays down sure and proper legislations to ensure that each citizen of that society is treated the same and considered on a level playing ground. This ensures equality, support for the minority, reduces un-due exploitation of the less privileged etc. Equal opportunities legislations or acts in every country focus to create a level playing ground so that people are identified, employed, compensated, trained and appraised for their merits, their skills, abilities and their dedication to work. Discrimination at work is a very vast topic and it could mean quite a lot like, discrimination based on sex, minority community being refused any privileges at work but offered to the majority or dominant community, for being marriage 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, being a part-time 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.

In this write-up on discrimination, we will be assessing what is discrimination at work, the gravity of the topic and the various legislations and acts coined to counter them to make the work place a level playing ground for all those involved.

Lawful Workplace Discrimination

People have distinct qualities and characteristics that separate one from another. Distinguishing these characteristics does not inevitably qualify as discrimination. For example, in performance management, discrimination is seen favourably upon as this isolates the non performers from the performers. Further more, the Fair Work Act 2009 states that under certain circumstances an action would not be considered as discrimination if it is permitted under the state or territory anti-discrimination laws or is an action undertaken based on the unalterable needs of the person.

Unlawful Discrimination at Workplace

Now that lawful discrimination has been established, what is considered to be unlawful discrimination? According to iHR Australia, unlawful discrimination 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. (IHR Australia, 2008) Regardless of size, employers cannot discriminate based on the above stated characteristics during recruitment, selection, terms, conditions, promotions, dismissals or training.

Australian law identifies two approaches to discrimination; direct discrimination and indirect discrimination. Direct discrimination, which is the easiest to identify, is when an employee is treated unapprovingly in comparison to another employee, due to the possession of an attribute that the employer considers favourable. Indirect discrimination on the other hand is 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.

In order to tackle workplace discrimination, the Commonwealth Government and the state and territory governments have established anti-discrimination laws to safeguard employees against discrimination and harassment. The following are laws that are considered at a federal level and the 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 the 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)

Now I will be discussing four types of discrimination that is prevalent in Australia and the acts that are intended to protect victims from discrimination.

Age Discrimination and the Age Discrimination Act 2004

Age discrimination, according to the Australian Human Rights Commission, is the act of treating people 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 Australians. Age discrimination can occur two ways: direct and indirect. Direct age discrimination is when an employer rejects a potential employee due to their age. Indirect discrimination is when an employer uses a condition or requirement that is applicable to all candidates; however the requirement inconveniences a person because of their age. As with all anti discrimination acts, the Age Discrimination Act also allows for exception such as state laws, health programs or youth wages. Under the ADA it is not unlawful to provide a benefit to a particular age group where the action was intended to meet a need that arises from that age group.

Sex Discrimination and the Sex Discrimination Act 1984

Sex discrimination, according to the Australian Human Rights Commission, is the act of treating people unfairly because of sex, marital status, because they are pregnant or might get pregnant, family responsibilities. It also focuses on the principles of equality for women and men. Sex discrimination can occur two ways: direct and indirect. Direct sex discrimination is when a company pays men more than women who are doing the same work. Indirect discrimination is when there is a condition where everyone is treated the same, but disadvantages a person because of their sex, marital status etc. If the condition is unreasonable, it could be indirect discrimination.

Pregnancy Discrimination occurs if a woman is treated unfairly because she is pregnant or might become pregnant. If the employee is refused employment or promotion, or avoided from training course, or demoted etc, it is a clear case of discrimination.

Disability Discrimination and the Disability Discrimination Act 1992

Disability discrimination, according to the Australian Human Rights Commission, is the act to discriminate against a person because of their disability. The Act also covers people who are relatives, friends and carers of people with a disability. Disability discrimination can occur in two ways: direct and indirect disability. It is not unlawful for an employer to not employ the person if he cannot perform the inherent requirements of a job. Employer needs to consider whether the person can perform the job requirements with ‘reasonable adjustment’ for the disability. 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’.

Racial Discrimination and Racial Discrimination Act 1975

Racial discrimination, according to the Australian Human Rights Commission, 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 known as indirect discrimination. Racial Discrimination Act provides for ‘special measures’ with the objective of securing the adequate advancement of a group, or individual members, affected by historic disadvantage to help them enjoy and exercise their human rights in full equality.

Prevention of workplace discrimination

It is recommended that the employers take ‘reasonable steps’ to prevent discrimination like regularly distribute and promote the policy at all levels of the organization, provide policy information as a part of induction for new staff, managers to be trained in order to ensure that the workplace is free of discrimination and consult with the professional associations, trade unions, Australian Human Rights Commissions when developing the anti-discrimination policies.

To assist employers in the elimination of discrimination in the workplace, the Australian Human Rights Commission has developed best practice guidelines to help ensure that the best person gets the job, work more productively without the fear of discrimination, positive work environment achieved with the help of teamwork.