Unfortunately, disability discrimination sometimes still happens. It may be that a person with disability is treated less favourably than people without disability. It may also be that people are treated less fairly because they are relatives, friends, carers, co-workers or associates of a person with disability.
What to do if you think you have been discriminated against
If you think you have been harassed or discriminated against because of your disability (or the disability of someone you know), the first step is to try to resolve the issue with the other person/s.
If the discrimination or harassment is happening in the workplace, discuss the issue with your employer. Many employers have a complaints procedure or a disability contact officer (usually within the human resources department) who can discuss workplace problems and concerns with you.
If you are unable to resolve the issue, you can make a complaint to the Australian Human Rights Commission. You can also complain to State and Territory organisations responsible for anti-discrimination.
Making a complaint to the Australian Human Rights Commission
Your complaint needs to be put in writing and should include:
- what happened
- when it happened
- where it happened
- who was involved
- the names of anyone else who can say what happened.
If you cannot write down your complaint, get someone else to write it down for you, or ask the Australian Human Rights Commission to help you write it down. For more information, visit the Commission’s website or phone 1300 656 419.
You can email your complaint to the Australian Human Rights Commission or electronically lodge a complaint through the Commission’s website.
The Australian Human Rights Commission then decides if they are legally able to investigate your complaint. If they cannot deal with your complaint, they will write to you and explain why. If they decide to investigate, this may include contacting the other person/s involved, to get their side of the story. The Australian Human Rights Commission will then work with you and the other person/s to find a solution that everyone can agree with. This is called conciliation. If conciliation does not work, you can decide whether or not to take your complaint to court.
Contacting the Fair Work Ombudsman to settle disputes
The Fair Work Ombudsman website can give you information on settling workplace disputes. It can tell you how to lodge claims if you think you have unlawfully lost your job due to your disability. It can also help if you have been discriminated against in some other way.
Last updated: 2 November 2022 - 8:32am
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As an employer you have a duty to protect the safety and welfare of your workers. This includes ensuring that no one is unfairly discriminated against in your workplace.
So what is discrimination?
By Joanna Weekes
As an employer you have a duty to protect the safety and welfare of your workers. This includes ensuring that no one is unfairly discriminated against in your workplace.
So what is discrimination?
Discrimination means treating a person or group less favourably than another person or group due to their circumstances or personal characteristics. These include a person’s:
- race;
- age;
- religious belief;
- gender;
- sexual orientation;
- marital status;
- pregnancy;
- political belief or activity;
- union membership or activity;
- impairment or disability (whether temporary or permanent); or
- obligations as a parent or carer.
Discrimination can be direct or indirect
Direct discrimination means treating a person with a particular attribute differently than a person without that attribute, e.g. not hiring someone because they subscribe to a certain religion.
Indirect discrimination means imposing a requirement that someone with a certain attribute cannot comply with, e.g. requiring a worker with family responsibilities to work weekends.
Treating a person differently because of some other activity or characteristic, e.g. the football team they follow, is not unlawful discrimination, but it could be considered bullying behaviour.
How you can prevent discrimination in the workplace
Discrimination may be caused by you as an employer or by other workers, but you still have the responsibility to monitor, manage and help prevent discrimination in your workplace.
To do this, take the following steps:
- educate all your workers about discrimination;
- encourage workers to respect each other’s differences;
- respond to any evidence or complaints of inappropriate behaviour;
- deal with any complaints of discrimination promptly and confidentially;
- develop a workplace policy that prohibits discrimination;
- train supervisors and managers on how to respond to discrimination in the workplace;
- make sure the workplace policy is properly enforced; and
- review the policy regularly to ensure that its effectiveness is maintained.
To find out more about how you can prevent discrimination in your workplace, see chapter D5 Discrimination and Harassment.
Read our fact sheet on workplace discrimination.
Download the fact sheet:
What is unlawful workplace discrimination?
Unlawful workplace discrimination under the general protections in the Fair Work Act 2009 (FW Act) occurs when an employer takes adverse action against a person who is an employee or prospective employee because of one or more of the following attributes of the person:
- race
- colour
- sex
- sexual orientation
- age
- physical or mental disability
- marital status
- family or carer’s responsibilities
- pregnancy
- religion
- political opinion
- national extraction or social origin
Where an investigation finds that the employer has (or had) discriminatory practices that are linked to adverse actions for employees or prospective employees, the Fair Work Ombudsman may take enforcement action.
What is adverse action?
Adverse action can include action that is unlawful if it is taken for a discriminatory reason. The FW Act describes a number of adverse actions.
Adverse action taken by an employer includes doing, threatening or organising any of the following:
- dismissing an employee
- injuring an employee in their employment
- altering an employee’s position to their detriment
- discriminating between one employee and other employees
- refusing to employ a prospective employee
- discriminating against a prospective employee on the terms and conditions in the offer of employment.
Sally is employed at an advertising firm. Recently, Sally applied for a promotion for a vacant Account Manager position. During the interview, Sally mentions to the Manager that she is pregnant and plans on taking her entitlement to parental leave. Although Sally is highly qualified for the job, her Manager tells her that she did not receive the promotion because she would be taking her parental leave. Denying Sally this position because she is pregnant is prohibited under the FW Act.
For more information on adverse action and other rights protected from certain unlawful action, please see our Protections at work fact sheet.
Who is covered by these protections?
It is unlawful for an employer to discriminate against an employee. This includes full time, part time and casual employees, probationary employees, apprentices and trainees, and individuals employed for fixed periods of time or tasks.
It is also unlawful to refuse to hire a prospective employee based on one of the attributes listed above.
What is not considered unlawful discrimination?
Treating someone differently is not necessarily unlawful discrimination. Some different treatment such as general performance management may not be an unlawful discrimination issue. In terms of the FW Act, an action is only considered adverse action if it occurs due to one or more of the above attributes (race, sex, age, disability, etc). If this is not the basis of the action, it may not be considered an act of unlawful discrimination.
Paul is a marketing employee who made several errors on his last project. To try and address this, Paul has been placed on a performance management plan to develop his skills. However Paul continued to make errors while on the plan. As such, Paul’s daily duties have been changed while he was undergoing further training. In this example, it is not unlawful to alter Paul’s employment because the reason was not based on his personal attributes (race, sex, age, disability, etc).
The FW Act also provides that in some circumstances, an action may not be considered discrimination.
This includes where the action:
- is permissible under state or territory anti-discrimination laws
- is based on the inherent requirements of the particular position concerned
- is taken against a staff member of an institution run in accordance with religious beliefs, and the action is taken in good faith and to avoid injury to those religious beliefs.
What about bullying and harassment?
Bullying and harassment – including sexual harassment – are serious concerns for any workplace.
If the bullying or harassment is linked to one of the attributes listed above (for example, race, sex, or religion), then it may be unlawful discrimination. The Fair Work Ombudsman has the power to deal with discrimination complaints.
Sexual harassment at work can be a form of serious misconduct and can also be a valid reason for dismissal under the FW Act. The Fair Work Commission (FWC) also has the power to issue orders to stop sexual harassment or bullying in the workplace. Go to www.fwc.gov.au for more information.
Bullying and harassment can be unlawful under occupational health and safety laws. People experiencing bullying or harassment should seek advice and help from their local occupational health and safety body.
What do I do if I think I’ve been discriminated against in my employment?
The FWO is committed to ensuring that employees and prospective employees are protected from unlawful workplace discrimination and any other adverse actions by an employer.
If you believe that you and/or other employees have been unlawfully discriminated against in your employment, and the action occurred or continued to occur after 1 July 2009, you can request assistance from the FWO. You can do this by submitting an online enquiry or calling us on 13 13 94.
The FWO investigates allegations of unlawful workplace discrimination and may initiate litigation against a national system employer for contravening the FW Act.
You may also be able to lodge an application with the FWC
What do I do if I’ve been dismissed due to discriminatory grounds?
If you have been dismissed and you believe that it is because of one of the attributes listed above (for example, based on your race, sex, age, disability, etc) you should make an application to the FWC in the first instance.
The timeframe for lodging an application to the FWC in relation to general protections (or for either unfair dismissal or unlawful termination) is 21 days. To find out more about matters involving termination, contact the FWC on 1300 799 675.
What are the remedies or penalties for unlawful discrimination?
Under the general protections in the FW Act, there are a number of remedies and penalties for adverse action on discriminatory grounds.
The maximum penalty for contravention of the unlawful discrimination protections is $66,600 per contravention for a corporation, and $13,320 per contravention for an individual.
Where the Federal Court or Federal Circuit and Family Court of Australia determines that a person has contravened the discrimination protections under the FW Act, the court may make any order that it considers appropriate, including orders for injunctions, reinstatement and/or compensation.
Other ways of getting help
The FWO does not have jurisdiction to deal with all unlawful discrimination complaints. Where a complaint or enquiry is outside our jurisdiction, you will be referred to the appropriate organisation. For example, if an employee is being bullied or harassed by colleagues, they will need to seek assistance from the relevant state or territory Occupational Health and Safety Authority.
There are a range of anti-discrimination laws and you may prefer to raise your concerns with the Australian Human Rights Commission
You can find contact details for these organisations at www.fairwork.gov.au/links. If you are a member of a trade union or employee association, they may also be able to help you.
Contact us
Fair Work Online: www.fairwork.gov.au
Fair Work Infoline: 13 13 94
Need language help?
Contact the Translating and Interpreting Service (TIS) on 13 14 50
Hearing and speech assistance
Call through the National Relay Service (NRS):
- For TTY: 13 36 77. Ask for the Fair Work Infoline 13 13 94
- Speak and Listen: 1300 555 727. Ask for the Fair Work Infoline 13 13 94