Discrimination can be either direct or indirect. In some circumstances it can be difficult to determine whether discrimination exists. Direct discrimination takes place when a person is treated unfairly or unfavourably because of a certain trait or attribute such as age, gender, disability, race, sex or religion. Indirect discrimination is where there is some requirement or condition (that is not reasonable in the circumstances) that appears to be the same for everyone, but disadvantages people with certain protected attributes more than it disadvantages people without those attributes. For example, it could be indirect disability discrimination if the only way to enter a public building is by a set of stairs because people with mobility disabilities would be unable to enter the building.
If an employee is subjected to “adverse action” by an employer as a result of discriminatory practises, they can initiate an investigation into workplace discrimination. Adverse action involves includes the undertaking, threatening to undertake or organising the dismissal, injury, alteration of position or general discrimination against one or a group of employees. It is unlawful for any adverse action to be committed against employee, an apprentice or a trainee. Unlawful discrimination claims must be lodged 21 days after the event or action that took place.
A clear discrimination policy needs to be in place, and employees should be required to read it, and receive training on this topic, including bullying and harassment.
It’s important to note that treating someone different to others is not necessarily discrimination. If different treatment occurs and is not because of factors such as age, sex, race rather performance, then it may not be considered discrimination.
Discrimination claims may generally be brought in the Fair Work Commission, Victorian Civil and Administrative Tribunal, Federal Courts and State and National Human Rights Commissions.
If you think you have been subjected to unlawful discrimination or if you believe you have been wrongfully accused as an employer, PH Solicitor is here to help.