Discrimination under federal and state law refers to someone being treated less favourably than others or an employer taking adverse action towards an employee based on one or more of the following attributes;


  • Race
  • Colour
  • Sex
  • Sexual orientation
  • Age
  • Physical or mental disability
  • Marital status
  • Family or carer responsibilities
  • Pregnancy
  • Religion
  • Political opinion
  • National extraction or social origin


Direct discrimination is often the most obvious and overt form of discrimination, referring to the ongoing mistreatment of an individual based on discriminatory reasons. Indirect discrimination, however, is often less overt and harder to prove.


This form of discrimination refers to an employer imposing requirements or rules which indirectly disadvantage someone based on personal characteristics.


Adverse action in the workplace refers to unlawful actions resulting from discriminatory motives. For example:


  • Dismissing
  • Injuring
  • Altering position to their detriment
  • Discriminating between one employee to the other
  • Refusing to employ
  • Discriminating in the terms and conditions of the offer of employment


Treating someone differently is not necessarily unlawful discrimination, it is only considered adverse action if the incident occurred due to one of the above-mentioned attributes. Unfortunately, your boss not liking you or being rude is not always illegal but can rather just be unethical workplace behaviour.


The laws


Federal anti-discrimination legislation distinguishes unlawful discrimination from unethical discrimination. These include the Age Discrimination Act 2004, the Disability Discrimination Act 1992, the Racial Discrimination Act 1984 and the Sex Discrimination Act 1984.


As well as these federal acts, each state and territory in Australia has anti-discrimination laws which outline unlawful discrimination. NSW, for example, has the Anti-Discrimination act 1977, which provides guidelines for discrimination in employment.



What can an employee do if they feel they have been discriminated against?


Discrimination in the workplace can be difficult to deal with and can be very distressing, however, it is unfortunately still extremely common in Australian workplaces.


The first thing an employee should do when faced with discrimination in the workplace, is to speak to a non-work related party. This will allow them to gain some perspective on the situation and to figure out if what has happened is in fact unlawful.


The next step should always be to attempt to communicate with a manager about your concern to try and solve the problem internally. If after this you feel like you wish to take it further, contacting a lawyer should be your next step.


What can employers do to prevent discrimination in their workplace?


Employers have an obligation to manage, monitor and help prevent discrimination in their workplace, whether it be from themselves of from another one of their employees.


Below are a few measures employers can take to ensure their business runs lawfully and effectively:


  • Educate all workers on what discrimination is and the effects it can have on people
  • Develop a comprehensive policy that prohibits discrimination in the workplace. This policy should be demonstrated by all managers, strongly enforced and updated regularly.
  • Train supervisors and managers on how to deal with discrimination complaints. All complaints should be taken seriously and responded to efficiently and appropriately.


If you or someone that you know has experienced any type of discriminatory action in the workplace or otherwise, and you’d like to talk to a lawyer, please don’t hesitate to contact our esteemed Employment law specialists at Owen Hodge Lawyers on 1800 770 780.