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Workplace discrimination

Employers have a legal responsibility to make sure that everyone who works for them is treated fairly. This means having processes in place to make sure that employees know that they must treat all of their colleagues with fairness and respect. Employers should have policies making it clear that discrimination will not be tolerated and also a process for handling complaints.

An employer may be held legally responsible if there are workplace incidents such as bullying, discrimination, sexual harassment or victimisation and they do not deal with it appropriately.

Who is an employee?

Employees are protected against discrimination in the workplace by state and Commonwealth laws. 'Employees' are broadly defined and include in some cases, unpaid staff like volunteers (particularly in harassment complaints), prospective employees (at job interviews) and contract workers.

See s. 4—Equal Opportunity Act 2010 (Vic)(opens in a new window) and VEOHRC—Volunteers(opens in a new window).

Attributes that must not be discriminated against

For employment discrimination to be unlawful, the discrimination must be on the basis of a particular attribute or characteristic.

For a list of the attributes see What is discrimination?

An employer is required to make reasonable adjustments

The employer is required to make reasonable adjustments to their workplace to accommodate a person who has an impairment so that the person is able to perform the reasonable requirements of the employment.

Decisions about what is reasonable will be made on a case-by-case basis and will depend on:

  • the particular impairment that the person has
  • the kind of role that is required to be filled
  • what adjustments need to be made to the workplace
  • the employer's financial circumstances
  • the size of the business,
  • the effect that the adjustments would have on the rest of the employees
  • the cost of the adjustments
  • a comparison of the consequences for the employer of making the adjustments against the consequences for the employee if those adjustments are not made
  • any action plan that has been made under the Commonwealth law about disability, see Disability Discrimination Act 1992 (Cth)(opens in a new window)

Sex Worker Protection - May 2022

In May 2022, The Victorian Government introduced the Sex Worker protections including the protected attribute of “profession, trade or occupation”.

It is unlawful to discriminate against a person who has or does engage in sex-work.

See s6(1)(la) --- Equal Opportunity Act 2010 (Vic) (opens in a new window)

See --- Equal Opportunity Commission Information page(opens in a new window)

Exceptions

The law allows an employer to discriminate against an employee or prospective employee in some circumstances. For example, they are not forced to accommodate the needs of an employee who is a parent or carer or who has a disability if that employer has made reasonable attempts to accommodate the employee.

“profession, trade or occupation”

As part of the Sex-Worker protection amendments and the introduction of the protected attribute of profession, trade or occupation an exception was introduced which reads as follows:

" An employer may discriminate on the basis of a person's profession, trade or occupation in relation to the offering of employment if experience in a particular profession, trade or occupation is relevant to the employment or offer and is a genuine occupational requirement for the position or role on offer and it is reasonable to discriminate on that basis in the circumstances.".

See --- s26(5) Equal Opportunity Act 2010 (Vic) (opens in a new window)

Discrimination on the basis of a criminal record

It is not unlawful for an employer to discriminate against a person who has a criminal record. A criminal record is not a protected attribute, although the Commissions may still be able to investigate a complaint and, if possible try to help the parties to resolve the issue. There is currently no protection under Victorian law.

See Australian Human Rights Commission under References.

Where to complain

Complaints may be made to either the Victorian Equal Opportunity & Human Rights Commission (VEOHRC) or to the Commonwealth under the Australian Human Rights Commission. There is a lot of overlap between the 2 jurisdictions. The Victorian commission may help decide which is best. A person can not lodge a complaint in both commissions.

The Fair Work Ombudsman can also give information about making a complaint.

See References.

More information

Legislation

Equal Opportunity Act 2010 (Vic)

  • s 4—defines and employee
  • s. 6—attributes
  • Div 1—discrimination in employment
  • s. 16—discrimination against job applicants
  • ss. 17, 19—obligation on employer to accommodate responsibilities as a parent or carer
  • s. 20—employer to make reasonable adjustments for person offered employment or employee with a disability
  • s. 18—discrimination against employees
  • Part 4—Div 5—lists the exemptions where discrimination is permissible

See Equal Opportunity Act 2010 (Vic)(opens in a new window)

Disability Discrimination Act 1992 (Cth)

  • Part 3—action plans

See Disability Discrimination Act 1992 (Cth)(opens in a new window)

References

Fair work Ombudsman

See Fair Work Ombudsman—Protection from discrimination at work(opens in a new window)

Victorian Equal Opportunity & Human Rights Commission

For details of the complaints process under Victoria law see:

Australian Human Rights Commission (AHRC)

For information about discrimination complaints under Commonwealth law see:

Updated