From time to time a client or a seminar attendee will ask me a
question along the lines of "What's the problem with
discrimination? I discriminate in business all of the time, every
time I make a choice or a decision. I need to do that to do what is
best for the business."
In one use of the word "discriminating", of course,
this is true: good judgment – or "being
discriminating" in that sense - is necessary when the choice
is made to appoint one person over another as being the best person
for the job, or decisions are made during the course of employment.
However, the critical point is that the judgment should not be
unlawful discrimination (a use of the word in a different sense)
because of a person's sex, ethnic background, or disability for
What are the unlawful grounds for discrimination?
The grounds on which it is unlawful to discriminate include:
race, colour, descent, national or ethnic origin, or
responsibilities for the care of family members such as
children, elderly parents or a person with a disability
marital or domestic status
pregnancy or breastfeeding.
Unlawful discrimination can occur on the part of an employer, or
on the part of other employees. For an employer, the issue might
arise at the point of choosing whom to employ, or later on,
deciding who gets particular benefits (eg salary increases) or
access to services or facilities (eg training or promotion). For
other employees, issues might arise about a person being excluded
from activities or groups, or being badly treated (eg being abused
or treated unfairly). A discrimination claim can arise when
somebody is being treated differently or less favourably because of
a characteristic listed above.
What does this mean in practical terms?
Discrimination law can be seen as a matter of legislated
For instance if it is not practicable, and it cannot be
practicable even with reasonable adjustments to the workplace, for
a person to do a job, then it is not discriminatory to refuse that
person's job application for that reason. However, employers
and managers must be conscious of the valid reasons for choosing
one person over another, by putting aside any assumptions about the
characteristics of the candidate and thinking clearly about the
requirements of the job.
How do these issues play out?
In one of the leading cases on discrimination (Poniatowska v
Employment Services Australi, 2010), Ms Poniatowska was
subjected to sexual harassment by male colleagues (uninvited and
unwelcome sexual propositions and text messages). When she
complained to her employer, the employer treated her as the
problem, and terminated her employment for allegedly poor
performance. The employer did not attempt to address the issues she
raised. It was found, on the evidence, that a complaint from a
male employee would have been handled differently, and that
the termination was really because of the complaint and not
performance issues. The employer's conduct was therefore
discrimination against Ms Poniatowska (quite apart from its conduct
in tolerating the harassment).
Another example of a discrimination claim, drawn from cases I
have dealt with during my own practice as an employment lawyer,
includes that of an employee of African background who claimed that
he had been discriminated against because sales which should have
been his had been allocated to other staff. He felt that that this
was because of the colour of his skin. However, the evidence showed
that the allocation of sales was conducted in accordance with
normal processes, and some jobs were not allocated to him because
of an injury that had limited his ability to deal with heavy stock.
He may have had fewer sales, but it was not because of
discriminatory decisions based on his ethnic background. The
company would have done the same in the case of anyone with the
same injury and physical limitations.
Being "discriminating" in the sense of making a
considered choice between one person and another, based on relevant
matters, is perfectly in order. What is not in order is making a
decision based on irrelevant matters, as indicated by
anti-discrimination legislation, in the list set out earlier. Doing
so will result in unlawful discrimination.
All businesses should have in place clear policies about
discrimination, harassment, bullying and grievance handling. These
policies lay the groundwork for managers and employees being
conscious of the issues, and dealing with them well if a problem
arises. Legal advice on policies and on potentially discriminatory
situations is an important part of business and risk
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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