Australia: Are your Equal Employment Opportunity (EEO) policies and procedures compliant with the new laws?

Last Updated: 6 January 2010
Article by Hedy Cray

Most Read Contributor in Australia, November 2016

Key Points: Outdated EEO and other anti-discrimination policies and procedures could leave employers and employees exposed.

The introduction of new obligations not to engage in "adverse action" and changes to age and disability discrimination laws gives employers a reason to take stock of whether their policies and procedures continue to be legally compliant and effective as tools of risk minimisation.

A new concept of adverse action

The passage of the Fair Work Act 2009 in July saw the introduction of a broad new alternative remedy for discrimination in the form of protection from "adverse action". These protections provide remedies much broader in scope than those available under anti-discrimination laws.

Importantly, the new adverse action provisions potentially apply in a discrimination context in two ways. First, there is a general prohibition on adverse action, which includes dismissal of an employee, injuring or altering an employee in their employment, or discrimination against a person, because they have exercised (or have not exercised) a "workplace right". The concept of a "workplace right" is defined broadly. Among other matters, a person has a workplace right if he or she is able to make a complaint in relation to his or her employment, or to a person or body able to enforce compliance with a workplace law.

A person will therefore have a workplace right where they have protection under anti-discrimination laws. In this sense, taking any prejudicial action against an employee who, for example, makes a complaint regarding harassment in the workplace would constitute adverse action, and be prohibited under the Fair Work Act. The workplace right provision, like discrimination legislation, can apply to potential employees.

Second, the Act boosts existing anti-discrimination protection by specifically prohibiting any adverse action on discriminatory grounds. Prohibited grounds include race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

A reverse onus of proof applies for claims by employees alleging adverse action, and the claim will be made out where only one of several reasons for the action was a discriminatory reason.

Employers should be familiar with the important concepts of workplace rights and adverse action, and be aware of their scope to reduce the risk of claims in this area. A breach of this provision of the Fair Work Act can attract a civil penalty of up to $6,600 for an individual and $33,000 for a corporation. Similarly a person who has been dismissed on these grounds can apply to Fair Work Australia within 60 days of the dismissal and Fair Work Australia may subsequently deal with the dispute.

Changes to age and disability discrimination laws

In other legislative developments, the federal Age Discrimination Act 2004 and Disability Discrimination Act 1992 were both broadened in scope by amendments with important implications for employers.

Persons alleging age discrimination will now find it much easier to establish a claim, as the amendments to the Age Discrimination Act have changed the relevant test. Previously, for an action to constitute unlawful discrimination the age of a person needed to be the "dominant reason" for the taking of that action. Now, the bar has been lowered so that an act may be discriminatory where age is just one of many reasons for the action.

The Disability Discrimination Act was also amended to expand the definition of "disability" to include a genetic disposition to a disability and behaviour that is a symptom or a manifestation of a disability. This potentially widens the scope for behavioural claims such as stress-related illnesses to fall within the definition.

The amendments also sought to clarify the general duty upon employers to make "reasonable adjustments" for employees with a disability. An adjustment will be reasonable provided it does not impose an unjustifiable hardship upon the person making the adjustments. Previously, this duty had been assumed to exist, however the amendments make it clear that there is a positive duty for employers to make reasonable adjustments to their workplace to accommodate someone with a disability. In a claim for disability discrimination, the onus will be upon the employer to prove that an adjustment would have caused unjustifiable hardship.

The amendments also provide that a failure to make reasonable adjustments (so long as they do not pose an unjustifiable hardship) can constitute a ground of disability discrimination.

The scope of indirect disability discrimination was also widened by the amendments, replacing the test of "proportionality" with one of "disadvantage." The proportionality test meant indirect discrimination occurred where an employer imposed a requirement or condition on a disabled person in circumstances where a substantially higher proportion of persons without the disability could comply. The requirement or condition also had to be unreasonable in the circumstances.

Now, the situation is that the requirement or condition will be discriminatory where it has, or is likely to have, the effect of disadvantaging people with the disability of the person alleging discrimination, or the employer has not made reasonable adjustments that would enable the employee to comply . This is a much easier test for employees to satisfy. The onus has also been switched so that the employer will have the burden of proving that the condition or requirement was reasonable.

Review of policies and procedures

A number of significant legislative changes have taken place in recent times and it is important for employers to have regard to these changes. In particular, many employers may need to amend their existing EEO policies and procedures to incorporate the amendments that have been made in particular to the age and disability discrimination laws.

A failure to do so may leave an employer in a position where their policies and procedures are outdated undoubtedly, but more critically, leave them flawed. This may give rise to a situation where, no matter how well drafted a current policy is, it no longer remains legally accurate. This could impact on an employer's capacity to successfully defend discrimination proceedings, particularly, where it seeks to rely on a vicarious liability defence.

In addition to any review of relevant policies and procedures, it is more important than ever to ensure that all staff and in particular managers are aware of their obligations in respect of discriminatory and harassing behaviour.

Importantly, managers should also be aware of an employer's new obligations not to take adverse action against employees and prospective employees. Unlike the anti-discrimination laws which define the context and circumstances in which discriminatory conduct may occur, the circumstances in which adverse action may take place are clearly much broader and potentially more difficult to discern in every circumstance.

This is especially so when adverse action can include in respect of an employee:

  • dismissing the employee;
  • injuring the employee in his or her employment;
  • altering the employee's position to his or her prejudice; or
  • discriminating between the employee and other employees

.

Finally, employers should also be aware that strictly speaking there is no equivalent to a "vicarious liability" defence as is found in the anti-discrimination laws. Therefore, if an employer is found to have engaged in adverse action towards an employee, the employer will be found to have contravened the Fair Work Act. The only "defence" is where the employer can prove the conduct was not engaged in because of a workplace right (for example, a right to request under the new National Employment Standards) or alternatively (where the conduct concerns a discriminatory ground) the conduct is not adverse action because it was otherwise not unlawful under state or federal anti-discrimination laws or was taken because of the inherent requirements of the position.

Thanks to Stephen Gavin and Nicholas Allan for their help in writing this article.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.