Equal Opportunity
4. Method of Discrimination
Authors: Staff Legal Eagle
Firm / Chambers:
Last updated: 22 Jul 2015
- Discrimination may occur in two ways: directly or indirectly.
- For both direct and indirect discrimination it does not matter whether the employer intended to discriminate against the employee.
- Unlawful discrimination includes harassing and offensive behaviour such as:
- sexual harassment;
- harassment of people with disabilities; and
- offensive behaviour based on racial hatred.
- Direct discrimination involves treating a person with a protected characteristic less favourably than a person who does not have the protected characteristic in the same or similar circumstances.
- Less favourable treatment means treatment that is both different and disadvantageous or reasonably regarded by the person being discriminated against as disadvantageous.
- Examples of less favourable treatment include:
- being paid less;
- being fired; or
- having reduced opportunities for promotion.
- For example if an employer refused to hire a woman because they think she will not be competent at accounting due to her gender this will be direct discrimination. The employer has decided not to employ a specific person based on the protected characteristic of her gender.
- The less favourable treatment must also be due to the person’s protected characteristic not other reasons such as poor performance for example.
- Indirect discrimination occurs when an unreasonable condition is imposed on everyone but it disadvantages a specific person because of their protected characteristic. Indirect discrimination can be more subtle and is sometimes more difficult to detect.
- The unreasonable condition might be a workplace policy, behaviour or protocol that applies to everyone but disadvantages the person with the protected characteristic.
- For example a requirement that all employees start work at 6 am may disadvantage those who have children.
- This is deemed discriminatory despite the fact that it applies to everyone.
- It is important to remember that the condition must be unreasonable. It is up to the claimant to show the condition is unreasonable.
- To decide whether the condition is unreasonable or not you must ask whether the decision to impose the condition is objectively reasonable having regard to the circumstances of the case.
- The court will weigh the condition’s discriminatory effect against any justification for its existence.
- Examples of factors that might be considered in the weighing exercise are:
- the financial burden of accommodating the needs of the aggrieved person; and
- whether alternative methods are available to achieve the employer’s objective without discriminating.
- No one factor is individually determinative.
- The legal test for reasonableness is described as objective. An objective legal test means that the way the individual claimant felt about the alleged discrimination is not the key consideration. This would be subjective. It must be the case that any person in the position of the claimant would have felt discriminated against.
- The specific claimant's feelings about the alleged discrimination may be one factor taken into account when deciding whether the condition is unreasonable but it is not the key.
- An employer arguing that the condition or requirement was reasonable must be able to show that it was in place for reasons more than mere convenience.
- Even if direct or indirect discrimination has occurred there are instances where the discrimination is not unlawful.
- There is no unlawful age discrimination if the alleged discrimination occurs due to direct compliance with federal laws concerning:
- youth wages;
- migration;
- superannuation;
- certain health programs;
- social security; or
- taxation.
- There is no unlawful disability discrimination if accommodating a person’s disability would impose unjustifiable hardship on the employer.
- There is also no unlawful disability discrimination if the employee would be unable to carry out the inherent requirements of the job.
- Positive discrimination involves treating a disadvantaged group more favourably than the rest of the population.
- This treatment is commonly referred to as ‘affirmative action’ or ‘special measures.’
- For example a job advertisement might state that it is only open to those with indigenous heritage.
- Employers can apply to the Australian Human Rights Commission for a temporary exemption of no more than five years duration. The onus (obligation) is on the employer to show that an exemption, exception or special measure applies.
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