Workplace discrimination

In Queensland, every employee has workplace rights that are guaranteed by legislation. The laws cover a broad range of areas including pay, conditions and workplace safety, but include specific protections against negative behaviour — in particular discrimination, harassment and bullying.

Workplace discrimination can take many forms and can have very serious impacts on the physical and mental health of those subject to it. It can also have serious repercussions for employers including reputational damage, lost productivity and penalties.

What is workplace discrimination?

Workplace discrimination occurs when a worker (or group of workers) is treated less favourably than another worker (or group of workers) because of a certain attribute they have. The Anti-Discrimination Act 1991 (Qld) (the Act) prohibits discrimination on the basis of:

  • sex;
  • relationship status;
  • parental status;
  • breastfeeding;
  • age;
  • race;
  • impairment;
  • religious beliefs or activities;
  • political beliefs or activities;
  • trade union activity;
  • lawful sexual activity;
  • gender identity;
  • sexuality or sexual orientation;
  • family responsibilities; and/or
  • association with (or relation to) any person identified based on any of the above attributes.

The discrimination may be based on a past, current or presumed attribute — or a characteristic that a person with any of the attributes generally has or is often imputed to have.

Discrimination can be direct or indirect.

Direct discrimination

Direct discrimination occurs when a person treats, or aims to treat, a person with an attribute less favourably than another person without the attribute, in circumstances that are the same or not materially different. The person’s motive for discriminating is irrelevant, and it is not necessary to prove that the person considered the treatment to be less favourable.

Indirect discrimination

Indirect discrimination occurs when a person imposes (or aims to impose) a term:

  • with which a person who has the attribute does not or is not able to comply;
  • with which a higher proportion of people without the attribute comply or are able to comply; and
  • that is not reasonable.

Whether a term is reasonable depends on the circumstances of the case, including:

  • the consequences of failing to comply;
  • the cost of alternative terms; and
  • the financial situation of the person imposing (or aiming to impose) the term.

The person imposing, or aiming to impose, the term does not need to be aware that they are indirectly discriminating.

An example of indirect discrimination is when an employer requires employees to wear a uniform, including a hat. The hat is required to be worn for appearance reasons and not for health or safety reasons. The requirement discriminates against people who must wear a headdress for cultural or religious reasons.

workplace discrimination

How does workplace discrimination occur?

Workplace discrimination can occur at different points in an employment relationship.

In the pre-employment stage, it is unlawful for an employer to discriminate against a person:

  • in arrangements made for deciding who should be offered work;
  • in deciding who should be offered work;
  • in the terms of work;
  • in failing to offer work;
  • by denying a person seeking work access to a training or guidance program; or
  • in developing the scope or range of such a training or guidance program.

When a person is employed, an employer must not discriminate:

  • by varying the terms of work;
  • by denying the person access to a promotion, transfer, training or other employment benefit;
  • by sacking the person or otherwise ending their employment;
  • by denying a person access to a training or guidance program;
  • in developing the scope or range of such a training or guidance program; or
  • by treating a person unfavourably in any way in connection with work.

The Act extends the coverage of workplace discrimination laws to membership of industrial, professional, trade or business organisations; qualifying agencies; and employment agencies.

Worker organisations

Workplace discrimination laws extend to membership of industrial, professional, trade or business organisations. Such organisations must not discriminate by, for example, failing to accept a person’s membership application. They must also not discriminate against a member by, for example, varying the member’s membership terms or denying the member access to member benefits.

Qualifying agencies

A person who has the authority to grant, renew or extend a qualification or authorisation (such as a licence or registration) that is needed in order to engage in a trade or profession must not discriminate when they decide an application. This includes by varying the terms on which a qualification or authorisation is granted; or by revoking or withdrawing a qualification or authorisation.

Employment agencies

Employment agencies must not discriminate when they introduce job-seekers to employers, in, for example, the terms on which a service is offered or supplied, or the way in which a service is supplied.

Exemptions for workplace discrimination

It is not unlawful for employers to discriminate in certain situations. These exemptions include:

When there is a genuine occupational requirement

Examples include when a person must:

  • be of a particular race, age or sex for authenticity, such as in entertainment work;
  • have a particular political belief to work for a political party; or
  • be female — to preserve decency and privacy in body searches.

In domestic residential services

A person may discriminate (but not on the basis of race) when choosing someone to perform domestic services, or care for the person’s children, at the person’s home.

In working with children

It is not unlawful to discriminate on the basis of lawful sexual activity, gender identity, or convictions for child sexual offences if this is done is to protect the physical, psychological or emotional wellbeing of children.

For single-sex accommodation

It is not unlawful to discriminate on the basis of sex if a worker is required to live in employer-supplied accommodation that:

  • is not equipped with separate sleeping accommodation for people of each sex;
  • is already occupied by a person or people of one sex only; and
  • the supply of separate sleeping accommodation for people of each sex would impose unjustifiable hardship on the employer.

When workers are to be a married couple

It is not unlawful to discriminate on the basis of relationship status if work is for one of two positions held concurrently by a married couple, or de facto partners or civil partners, and the workers must live in accommodation supplied by the employer.

Retiring age for partners

It is not unlawful to discriminate on the basis of age when deciding who should be invited to become a partner in a partnership, through a requirement that a person must not be more than a specified age or must retire from the partnership at a specified age.

Youth wages

An employer may pay a worker aged under 21 years, according to the worker’s age.

When a worker has an impairment

An employer may set reasonable terms for a worker who, because of an impairment, is restricted from doing work that is genuinely and reasonably required for the position, or requires special conditions to be able to do the work.

It is not unlawful for an employer to discriminate on the basis of impairment if:

  • the circumstances of the impairment would impose unjustifiable hardship on the employer (considering the nature of the impairment and the nature of the work); or
  • the person with the impairment would require special services or facilities, and the supply of these would impose unjustifiable hardship on the employer.

Unjustifiable hardship

Whether the supply of special services or facilities, or accommodation, would impose “unjustifiable hardship” on an employer depends on the circumstances of the case, such as:

  • the nature of the special services or facilities, or accommodation;
  • the cost of supplying the special services or facilities, or accommodation, and the number of people who would benefit or be disadvantaged;
  • the financial circumstances of the employer;
  • the disruption that supplying the special services or facilities, or accommodation, might cause; and
  • the nature of any benefit or detriment to all people concerned.

Queensland Industrial Relations Commission (QIRC)

The QIRC generally deals with workplace discrimination claims, after they have been investigated by the Queensland Human Rights Commission. A conciliation conference is usually held between the parties and if the matter is not resolved, it proceeds to a hearing where a decision is made. If the QIRC finds there has been unlawful discrimination, it can make an order that, for example:

  • prevents an employer from further discriminating against a worker;
  • requires an employer to pay compensation to a worker;
  • requires an employer to take certain actions to redress loss or damage;
  • requires an employer to make a private or public apology;
  • requires an employer to implement programs that eliminate unlawful discrimination; or
  • declares void all or part of an agreement made about the unlawful discrimination.

Time limits for discrimination claims

A claim for discrimination under the Act must be made within one year of the alleged discriminatory conduct. However, exceptions may apply and an application may be heard after a time limit has expired if the applicant has shown a good cause.

Costs

The standard position for QIRC disputes is that each party bears their own legal costs. The Act does not contain any provision about legal costs but the Industrial Relations Act 2016 (Qld) allows the QIRC to order a party to pay all or part of another party’s costs in the interests of justice. In deciding whether to award costs, the QIRC may consider factors including:

  • whether a party has acted in a way that has unnecessarily disadvantaged another party;
  • the nature and complexity of the proceeding;
  • the relative strengths of each party’s claim; and
  • each party’s financial circumstances.

Adverse action and discrimination in the workplace

There is also federal legislation that deals with workplace discrimination. This includes the Fair Work Act 2009 (Cth). Under this Act, “adverse action” occurs when an employer engages in, threatens to engage in, or organises, any conduct that has an adverse effect on an employee or prospective employee. This conduct includes unlawful workplace discrimination. The legislation prohibits employers from discriminating against employees or prospective employees on the grounds of:

  • race;
  • colour;
  • sex;
  • sexual orientation;
  • age;
  • physical or mental disability;
  • marital status;
  • family or carer’s responsibilities;
  • pregnancy;
  • religion;
  • political opinion;
  • national extraction; or
  • social origin.

The legislation allows inspectors to investigate allegations of workplace discrimination, and it contains penalties and remedies to deal with adverse action taken on discriminatory grounds.

For when you need help

Discrimination can have  serious impacts on both workers and employers. It is important that all the parties know what their liabilities are.

If you are a worker considering making a claim for discrimination, we can prepare and submit your legal documents, as well as represent you in conciliation conferences, applications and hearings.

If you are an employer defending a discrimination claim, we can help draft your response and other legal documents, and represent you in conciliation conferences, applications and hearings. We aim to have the claim dismissed, or alternatively to negotiate with the other party and reach a reasonable settlement.

Contact Gibbs Wright Litigation Lawyers today for a free and confidential initial consultation.

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