All workers have the right to carry out their employment without being harassed or discriminated against. If you find yourself in this position, you may feel alone and powerless. However, it is important to remember that you have legal protections and rights when it comes to harassment and discrimination.
The discussion below provides guidance for workers on what steps to take if they find themselves being discriminated against or harassed in their workplace.
What is “harassment”?
Under federal discrimination legislation, it is unlawful to treat a worker less favourably on the basis of their particular protected attributes such as, a worker’s sex, race, disability or age.
Harassment is unwelcome conduct on discriminatory grounds which is offensive, humiliating or intimidating.
Below are some examples of behaviour that may amount to harassment;
- telling insulting jokes about specific racial groups
- sending sexually explicit or suggestive emails or texts
- displaying racially offensive or pornographic material
- making derogatory comments or jokes about a worker’s disability
- asking intrusive questions about a worker’s personal life, including their sex life
There have been significant reforms in relation to workplace harassment following the 2020 Respect at Work Report, providing additional protection for employees. Those reforms include:
- the introduction of positive duties on employers to eliminate discriminatory conduct;
- a prohibition on sex-based harassment which is defined as unwelcome conduct of a demeaning nature due to the person’s sex;
- sexual harassment is now included in the definition of serious misconduct in the Fair Work Regulations
- A prohibition on subjecting employees to a hostile work environment on the grounds of sex
Workplace bullying is sometimes referred to as “bullying and harassment”. Bullying is repeated, unreasonable behaviour which creates a risk to health and safety (but does not include reasonable management action carried out in a reasonable way). Harassment in that context is unreasonable and unwelcome behaviour which is offensive, humiliating or intimidating. Some examples of bullying include:
- physically or verbally abusing another worker
- yelling, screaming or using offensive language towards another worker
- purposefully excluding or isolating a worker
- psychological harassment or intimidation of another worker
What is “discrimination in the workplace?”
Under the Fair Work Act 2009, discrimination in the workplace can occur when an employer takes adverse action against a worker or prospective worker because of a “protected attribute.” Protected attributes include:
- race, colour, religion, social origin or national extraction
- sex or sexual orientation
- age
- physical or mental disability
- marital status
- family or carer’s responsibilities
- pregnancy
- political opinion
“Adverse action” is defined as either doing, threatening or organising any of the following:
- firing a worker
- contributing to a worker’s injury as a result of not allowing them legal entitlements such as pay or leave
- making changes to a worker’s job to their disadvantage
- treating a worker differently to their colleagues
- not hiring a potential worker
An example of a recent discrimination case occurred where a labour hire company was found to have discriminated against a worker when they refused to hire the qualified 70 year old due to his age.
What can I do if I’m being harassed or discriminated against?
There are a few options available to you. Initially, you can approach your workplace health and safety or human resources officer or union representative. These people should be able to provide you with helpful advice. You can also report harassment or discrimination to your supervisor or manager.
You can also refer to your workplace policies and procedures which should provide a guide on how your workplace deals with discrimination and harassment, including how to make formal complaints, and what prevention strategies are in place.
If your type of employment comes under the jurisdiction of the Fair Work Act 2009, you may also apply to the Fair Work Commission (FWC) for stop bullying order, or a stop sexual harassment order. If the conduct involves a breach of your general protections or discrimination under the Fair Work Act, you may be able to make an application to the Fair Work Commission.
Who else can help me?
The Australian Human Rights Commission (AHRC) has the power to deal with complaints of workplace harassment or discrimination if the harassment or bullying has breached federal legislation. The AHRC resolves complaints through a supported conciliation process.
There are also state and territory anti-discrimination commissions who can handle discrimination complaints, again through supported conciliation processes.
Conclusion
Workers who are dealing with harassment and discrimination in their workplace can often feel isolated and overwhelmed. However, it is important to understand the law provides workers with the right to carry out their work, free from discrimination and harassment and those laws have been amended recently to provide more protections for employees.
This area of law can become complex and overwhelming, so we recommend you seek advice from an experienced lawyer who can provide options of realistic solutions for your particular situation.
If you or someone you know wants more information or needs help or advice, please contact us on (02) 5127 5261 or email [email protected].