What is discrimination?

Discrimination usually refers to treating someone unfairly because they belong to a particular group or because they have a particular attribute. There is a large volume of law in Australia that makes discrimination unlawful in particular circumstances. The anti-discrimination law is very complex.

Generally, discrimination is unlawful discrimination if it is:

  1. on the basis of an attribute you possess
  2. direct or indirect discrimination
  3. in an area of public life including work
  4. not excused by an exemption.

The attributes, the definitions of direct and indirect discrimination, the areas of public life and exemptions are defined by laws of the state and federal parliaments.

Discrimination at work

Unlawful discrimination at work is prohibited by the:

  1. Anti-Discrimination Act 1991 (Qld)
  2. Disability Discrimination Act 1992 (Cth)
  3. Racial Discrimination Act 1975 (Cth)
  4. Sex Discrimination Act 1984 (Cth)
  5. Age Discrimination Act 2004 (Cth)
  6. Fair Work Act 2009 (Cth) for National System Employees only (see Dismissal).

Each of the Acts covers different attributes, defines discrimination a bit differently and some have different complaint processes and time limits.

Attributes

The Anti-Discrimination Act 1991 (Qld) covers unlawful discrimination which occurs because of:

  • sex
  • relationship status
  • pregnancy
  • parental status
  • breastfeeding
  • age
  • race
  • impairment
  • religious belief or religious activity
  • political belief or activity
  • trade union activity
  • lawful sexual activity
  • gender identity
  • sexuality
  • family responsibilities
  • association with, or relation to, a person identified on the basis of any of the above attributes.

The Disability Discrimination Act 1992 (Cth) covers a wide range of disabilities.

The Racial Discrimination Act 1975 (Cth) covers race, colour, decent, and national and ethnic origin.

The Sex Discrimination Act 1984 (Cth) covers discrimination on the basis of sex and some other attributes that particularly affect women such as pregnancy and breastfeeding. It also provides protection in relation to family responsibilities, gender identity, intersex status, and marital or relationship status.

The Age Discrimination Act 2004 (cth) covers age.

The Fair Work Act 2009 (Cth) covers race, colour, sex, sexual orientation, age, physical and mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction and social origin.

Direct and indirect discrimination

Direct discrimination is when you are treated less favourably than other people because of your attribute. 

Indirect discrimination is when you are treated the same as everyone else, but there is an unfair impact on you because of your attribute and it is not reasonable in the circumstances.

Exemptions

There are lots of exemptions contained in the legislation, which allow discrimination to occur in certain circumstances.  

The exemptions most commonly raised in relation to employment are that:

  • you cannot perform the inherent requirements of your job even with reasonable adjustments for your attribute
  • the employer cannot provide a safe work place for someone with your attribute.

Employers also frequently raise that the treatment of the employee was unrelated to their attribute but rather for some other reason like their conduct or work performance.

What steps should you take if you think you have been discriminated against?

If you believe that you have been, or are being, discriminated against, and it is safe to do so, you can ask the person to stop and let them know that what they are doing is making you uncomfortable.

You should also report the discrimination to your supervisor or manager.

Prior to reporting the events to your supervisor or manager, you should:

  • write events down as they happen (record times, dates, names, comments etc.)
  • keep a copy of letters/emails/texts you send or receive
  • stay calm and try not to talk to anyone involved when you are angry or distressed
  • learn about the support available to you from your workplace and external agencies (e.g. counselling and your workplace’s discrimination and harassment policies).

The Fair Work Ombudsman’s website provides a range of tools and resources designed to help resolve workplace issues.

What is the process for making a formal discrimination complaint?

If you feel that you have been the subject of some form of discrimination prohibited by the Anti-Discrimination Act 1991 (Qld), you can make a formal complaint to the Anti-Discrimination Commission Queensland (ADCQ).

If you are making a complaint about breaches of a Commonwealth law, you could make a complaint to the Fair Work Commission for breaches of the Fair Work Act discrimination provisions or to the Australian Human Rights Commission (AHRC) for breaches of the other Commonwealth discrimination legislation.

Time limits for making a complaint

Complaints to the ADCQ and AHRC must be made within 12 months of the date of the discrimination occurring.

Complaints to the Fair Work Commission which involve a dismissal must be made within 21 days of the date the dismissal takes effect. Complaints to the Fair Work Commission about discrimination unrelated to a dismissal must be made within six years of the date of the discrimination.

Different jurisdictions handle late complaints in different ways. You should seek legal advice about lodging a complaint outside of the time limit.

How to choose between making a complaint to the ADCQ, the AHRC or the Fair Work Commission

If you have been discriminated against and you think that the discrimination was unlawful under more than one pieces of legislation then you have to choose which claim you bring.  You cannot bring more than one claim.

For example, if a woman is dismissed because she is pregnant, she may have the option of unfair dismissal, general protections (dismissal) or a claim under either the Anti-Discrimination Act 1991 (Qld) or the Sex Discrimination Act 1984 (Cth).

Making the decision about which claim to make normally requires legal advice. A lawyer will go through a number of different considerations and talk about which option is best.  The sorts of issues that come up in this decision-making process typically include:

  • which option offers the best likely remedy
  • the risks of each option, including whether there is a risk of having to pay for legal costs
  • whether the person has a lawyer
  • how long and complicated each of the legal processes are
  • the available evidence to prove each of the possible actions.

Further information

For more information on discrimination, you can contact the: