What counts as unlawful discrimination at work

The protected attributes

Discrimination at work is unlawful when an employer treats someone worse because of a protected attribute: a personal characteristic the law says must not be held against you.

Under s 351 of the Fair Work Act 2009 (Cth), an employer must not take adverse action against an employee or prospective employee because of their race, colour, sex, sexual orientation, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer's responsibilities, subjection to family and domestic violence, pregnancy, religion, political opinion, national extraction or social origin.

Federal laws such as the Sex Discrimination Act 1984 (Cth), the Disability Discrimination Act 1992 (Cth), the Age Discrimination Act 2004 (Cth) and the Racial Discrimination Act 1975 (Cth), and in Western Australia the Equal Opportunity Act 1984 (WA), protect similar attributes, each in its own terms.

What discrimination looks like at work

Adverse action is the Fair Work Act's term for harmful treatment. For an employee it includes dismissal, injuring them in their employment, changing their position to their detriment, or treating them differently from other employees (s 342). For a job applicant it includes refusing to employ them or offering worse terms.

So discrimination is not only about being sacked. Being demoted, rostered for fewer shifts, passed over for a role, or offered a worse contract because of a protected attribute can all be unlawful.

In a Fair Work Act claim, once you show the action was taken and allege the reason, the employer must prove the protected attribute was not a reason for it (s 361). Discrimination laws also protect you from victimisation for making or supporting a complaint, and separately prohibit sexual harassment. Employers now also have a positive duty under the Sex Discrimination Act to take reasonable and proportionate measures to eliminate, as far as possible, unlawful sex discrimination, sexual harassment, sex-based harassment and related conduct (s 47C).

When different treatment is not unlawful

Under s 351(2), the Fair Work Act protection does not apply to action that is not unlawful under any anti-discrimination law where it was taken, or action taken because of the inherent requirements of the particular position. Inherent requirements are the essential tasks of the job, not every task the employer would like done. There is also a limited exception for staff of religious institutions acting in good faith to avoid injury to the religious susceptibilities of adherents of the religion.

Under disability discrimination law, an employer may need to make reasonable adjustments, such as changed hours, duties or equipment, so a worker can do the job. An employer is not required to make an adjustment that would impose an unjustifiable hardship on it.

Where a claim can be made

There are two main paths. Under the Fair Work Act, a general protections claim goes first to the Fair Work Commission and, if it does not resolve, to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2). Under anti-discrimination law, a complaint goes to the Australian Human Rights Commission or the WA Equal Opportunity Commission.

If you were dismissed, the Fair Work Act generally lets you pursue only one of these paths for the dismissal (s 725). Choosing well depends on who your employer is, what happened and when. If you work for a WA state government agency, a local government or another employer in the WA state system, the Fair Work Act general protections usually do not cover you, but anti-discrimination laws still do, and if you are dismissed the Fair Work Act's separate protection against unlawful termination for a protected attribute (s 772) can still apply.

The time limits differ greatly. A Fair Work general protections claim about a dismissal must be lodged within 21 days of the dismissal taking effect, unless the Commission allows more time (s 366). The Australian Human Rights Commission may end a complaint lodged more than 24 months after the conduct.

How a claim usually starts

Most claims begin with a conciliation: a confidential meeting, run by the Commission dealing with the claim, where both sides try to agree on an outcome. The conciliator does not decide who is right. The usual outcome, if the matter settles, is a payment of compensation, sometimes with other terms such as a reference.

If the complaint does not resolve, you may be able to take it to court. After the Australian Human Rights Commission ends a complaint, you have 60 days from the date of its notice ending the complaint to apply to the Federal Court or the Federal Circuit and Family Court (Division 2), unless the court allows more time. Because the paths and deadlines vary, it is worth getting advice early.