The Fair Work Ombudsman (FWO) received and assessed nearly 400 more workplace discrimination complaints last financial year than in 2009-10 – an increase of 46%.
The most common complaint was alleged discrimination on the grounds of physical or mental disability (20% of all complaints), followed by complaints based on age (13%), and alleged discrimination related to family or carer responsibilities (12%).
Other complaints related to alleged discrimination were on the grounds of:
The FWO has had the power to investigate discrimination in the workplace since the Fair Work Act 2009 was introduced, and a specialist anti-discrimination team has been established within the agency’s Complex Investigations & Innovation branch.
Nicholas Wilson from FWO said all workplaces should be without fear of discrimination, and information about discrimination and various workplace entitlements available on its website at www.fairwork.gov.au
Swinburne University of Technology identifies direct and indirect discrimination in its HR policy, and provided some workplace examples, namely:
Direct discrimination occurs if a person treats, or proposes to treat, a person with an attribute unfavourably because of that attribute.
In determining whether a person directly discriminates it is irrelevant-
(a) Whether or not that person is aware of the discrimination or considers the treatment to be unfavourable;
(b) Whether or not the attribute is the only or dominant reason for the treatment, provided that it is a substantial reason.
A manager only offers his staff under 50 the opportunity to attend a training course. This behaviour amounts to direct discrimination based on age. It is discriminatory to assume that older employees are more likely to leave the job sooner than younger employees or are not interested in promotion opportunities.
Indirect discrimination occurs if a person imposes, or proposes to impose, a requirement, condition or practice-
(a) That has, or is likely to have, the effect of disadvantaging persons with an attribute; and
(b) that is not reasonable.
In determining whether a person indirectly discriminates, it is irrelevant whether or not that person is aware of the discrimination.
The person who imposes, or proposes to impose, the requirement, condition or practice has the burden of proving the requirement, condition or practice is reasonable.
Janet’s manager announces that all divisional staff members will be expected to attend an 8.30am staff meeting Monday to Friday. When Janet explains that she has to drop her child off at day care at this time each morning, her manager tells her that she will need to figure something out. Her manager also indicates that she expects Janet to attend the morning meetings if she hopes to gain the promotion she is seeking.
This requirement could be seen as an unreasonable expectation in light of Janet’s parental and carer responsibilities and therefore amount to indirect discrimination.