In recent news, a high profile public Australian company was embroiled in a discrimination incident in which one of its sub-contractors posted a job advertisement that was racially discriminative.
The Fair Work Act expands that prohibition on discrimination to include any “adverse action” including a refusal to employ, taken on the basis of attributes which include: race, colour, gender, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
What is direct discrimination?
Direct discrimination is when a person treats another person less favourably than he or she treats, or would treat, someone else in the same or similar circumstances, because of one or more of the grounds set out in the Equal Opportunity Act.
What is indirect discrimination?
Indirect discrimination occurs when a rule, practice or policy that appears on its face to be neutral in effect or has a disproportionate and disadvantageous impact on individuals who share a particular attribute (eg. family responsibility) recognised as a ground under the Equal Opportunity Act.
What is the difference between an ‘exception’ and an ‘exemption’ under the Equal Opportunity Act?
An ‘exception’ is when the Equal Opportunity Act specifically makes it lawful to do something that would otherwise be unlawful.
An ‘exemption’ is when a person applies to the State Administrative Tribunal for permission to do something that is intended to provide equal opportunities to a particular group of people, on a ground covered by the Equal Opportunity Act. If the Tribunal grants the exemption, then a complaint of unlawful discrimination cannot be made against that person during the time that the exemption applies. For example, if your company caters specifically for female clientele at women’s gyms or intimate apparel, you are eligibile to apply for exemption. However, it is always best to seek professional advice in all areas of this law.
It is imperative that not only your company’s anti discrimination policies are in line with the Fair Work Act, but also your sub-contractors or companies representing you are also complying with the legislation, otherwise you could be at risk of damaging your company’s reputation and image.
If you have a concern regarding discrimination laws, review of your discrimination policies or any general enquiries in relation to employment laws, please contact our team of experienced Employment Lawyers here at The Quinn Group on 1300 QUINNS (1300 784 667) or +61 2 9223 9166 or by completing and submitting an online enquiry.