Discrimination is treating, or proposing to treat, someone unfavourably because of a personal characteristic protected by law.
Employees are protected from discrimination at all stages of employment, including:
- recruitment, including how positions are advertised and how interviews are conducted
- being offered unfair terms and conditions of employment
- being denied training opportunities, promotion, transfers, performance pay or other employment-related benefits
- being unfairly dismissed, retrenched or demoted.
Direct and indirect discrimination
Direct discrimination is when a person treats, or proposes to treat, someone unfavourably because of a personal characteristic protected by law. Direct discrimination often happens because people make unfair assumptions about what people with certain personal characteristics can and cannot do.
For example, refusing to employ someone on the basis of their age because you think they are too old to learn new skills.
Indirect discrimination occurs when an unreasonable condition is imposed that disadvantages a person with a personal characteristic protect by law. Indirect discrimination happens when a workplace policy, practice or behaviour seems to treat all workers the same way, but it actually unfairly disadvantages someone because of a personal characteristic protected by law.
For example, a requirement for employees to work 12-hour shifts may appear to treat everyone equally. However, it may disadvantage employees with family or caring responsibilities. If the requirement is not reasonable, this is indirect discrimination.
Sexual harassment is unwelcome conduct of a sexual nature. It involves behaviour that could reasonably be expected to make a person feel offended, humiliated or intimidated. Sexual harassment can be physical, verbal or written.
Authorising and assisting
It is against the law to authorise or assist another person to discriminate against or sexually harass someone. This means a person must not ask, instruct or encourage anyone else to undertake these actions.
Victimisation is subjecting, or threatening to subject someone, to something detrimental because they have asserted their rights under equal opportunity law, made a complaint, helped someone else make a complaint or refused to do something because it would be discrimination, sexual harassment or victimisation.
Victimisation is against the law.
Are there any exceptions?
The Equal Opportunity Act 2010 includes some general exceptions. This means that discrimination may not be against the law in particular circumstances.
Employers may be vicariously liable for their employees’ acts of discrimination or sexual harassment. Employers can also be directly liable. Find out more about who is liable for discrimination and harassment.
Employers also have a positive duty to eliminate discrimination, sexual harassment and victimisation as far as possible.