Workplace Discrimination and Harassment Laws

25 April 2023 in Business Law | 5 min read | skip to FAQs

This article provides an overview of workplace discrimination and harassment laws in Australia and discusses why employers must understand and prevent these issues in the workplace. By understanding these legal obligations and creating an inclusive work environment, employers can avoid legal problems and potential litigation. Furthermore, fostering a workplace culture that promotes equality, diversity and respect for all employees is not only a legal obligation but also a key factor in promoting employee well-being and productivity.

What is Workplace Discrimination and Harassment?

In recent years, it has become increasingly understood that diversity and inclusion are essential components of a successful workplace. In Australia, employers are required by employment law and discrimination law, to take measures to prevent and address workplace discrimination and harassment. It is important for employers to understand their legal obligations, including those outlined in employment contracts and federal law such as the Racial Discrimination Act and the jurisdiction of the Federal Court.

Types of Workplace Discrimination and Harassment

There are many different types of discrimination and harassment that can occur in the workplace, both direct and indirect, all of which are prohibited under the law. These include:

Sexual Harassment

One of the most prevalent forms of workplace harassment is sexual harassment, which can take many forms, such as unwanted physical contact, comments or gestures of a sexual nature.

Ageism

Age discrimination is also a common problem, where employees or job applicants are treated unfairly because of their age. This can include being overlooked for promotion or not being considered for a job because they are considered too old or too young.

Racism

Racial discrimination involves treating employees unfairly because of their race or ethnicity. This can include offensive comments or jokes, exclusion from social or professional events, or being passed over for job opportunities because of one’s race.

Abelism

Disability discrimination occurs when employees or job applicants are treated unfairly because of their disability. This can include failing to provide reasonable accommodation, facilities or opportunities for advancement.

Bullying

Bullying is defined as repeated and unreasonable behaviour directed towards a person. When this type of behaviour occurs in the workplace, it is considered a form of harassment and can have serious negative impacts on employees’ health and safety.

Discrimination and harassment can also occur based on an individual’s religion, gender identity, sexual orientation, marital status or other characteristics.

Laws Regarding Workplace Discrimination and Harassment

There are several laws that regulate discrimination in the workplace.

The Anti-Discrimination Act 1977 (NSW) makes it illegal to discriminate against an individual based on their race, sex, transgender status, marital status, age, status as a carer (applies to employment only), disability or homosexuality in employment and other areas such as education, where goods and services are provided, where accommodation is provided and within registered clubs. The act also prohibits sexual harassment and compulsory retirement from employment based on age.

The Fair Work Act 2009 (Cth) sets out the legal framework for employment relationships in Australia and provides protections for employees against discrimination and harassment. Additionally, the Work Health and Safety Act 2011 requires employers to ensure the health and safety of their employees, including physical and psychological health. This includes preventing and addressing discrimination and harassment, as these can have a significant impact on employee health and well-being.

Non-compliance with workplace discrimination and harassment laws can result in a range of legal consequences for employers. These can include:

1. Financial penalties Employers who violate anti-discrimination laws may be subject to fines or other financial penalties. The amount of the fine varies depending on the severity of the violation.
2. Legal action Employees who have experienced discrimination or harassment in the workplace may bring legal action against their employer. This can result in legal costs and damages being awarded against the employer.
3. Regulatory action The NSW Anti-Discrimination Board has the power to investigate complaints of discrimination and harassment and take regulatory action against employers who violate anti-discrimination laws. This can include issuing compliance orders, initiating legal proceedings, ordering payment of damages or referring matters to other regulatory bodies.

Preventing Workplace Discrimination and Harassment

There are several actionable steps that employers in Australia can take to prevent discrimination and harassment in the workplace. Some of these steps include:

1. Creating and enforcing clear policies
   

   Employers should develop and implement clear policies and procedures that prohibit discrimination and harassment in the workplace. These policies should clearly outline what behaviour is unacceptable and the consequences of non-compliance.

2. Providing training to employees
   

   Employers should provide regular training to employees on workplace discrimination and harassment, including how to recognise, prevent and report these issues. This training should be tailored to the specific needs of the business and its employees.

3. Encouraging a safe reporting environment
   

   Employers should encourage employees to report incidents of discrimination and harassment and provide a safe and confidential reporting mechanism for doing so. This can include a designated person or team responsible for receiving and addressing complaints, and a process for investigating and resolving complaints in a timely and fair manner.

4. Addressing complaints promptly
   

   Employers should take all complaints of discrimination and harassment seriously and investigate them promptly and impartially. This includes taking appropriate disciplinary action against employees who engage in discriminatory or harassing behaviour and providing support and protection to victims.

5. Promoting diversity and inclusion
   

   Employers should promote diversity and inclusion in the workplace by valuing and respecting employees from all backgrounds and cultures and creating a culture that celebrates differences and encourages collaboration and teamwork.

Employers have a legal responsibility to prevent and address discrimination and harassment in the workplace. By prioritising these efforts, employers can avoid significant financial and legal consequences and create a safe and inclusive workplace culture that promotes employee well-being, productivity and business success.

How can BSM Sydney Lawyers assist you?

Brander Smith McKnight Sydney law firm have experienced employment lawyers who are able to assist you with any issues related to workplace discrimination and harassment. If you are an employer establishing your employment contracts or policies or if you believe that you have been wronged or unfairly treated, do not hesitate to speak to one of our lawyers for expert advice and guidance on your rights and options. 

We are able to assist if you are an employer wanting to protect your business and ensure that your business complies with all relevant legislation, or you are an employee wanting to enforce your employment contract, claim unpaid wages, or protect your rights in discrimination cases. We can guide you in ensuring a fair and just workplace for all workers. Contact the experienced senior business lawyers at Brander Smith McKnight for a free 20-minute consultation.

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BSM Lawyer Sydney have conveniently located offices in Sydney CBD, Parramatta, Sutherland, Shellharbour and Wollongong.