Published: 24 April 2018
Author: Ryan Carlisle Thomas
I think I’ve been discriminated against at work. What can I do?
If you think you've suffered discrimination at work, you might be able to sue for compensation for financial loss and for pain and suffering. You may also be able to obtain other, practical, remedies. But before you take any action, it's very important that you work out whether you fit within categories or situations protected by anti-discrimination laws.
Many people don't realise that anti-discrimination laws apply only to certain protected categories (such as race, sex, disability, age, sexual orientation, age and so on) or situations, such as sexual harassment, so the first thing is to work out whether there is a link between the offensive behaviour you've experienced and a category that's protected under law.
We have a number of laws in Australia which apply to discrimination. In Victoria we have laws such as the Equal Opportunity Act. We also have Commonwealth law such as the Racial Discrimination Act, the Sex Discrimination Act, the Disability Discrimination Act and the Age Discrimination Act. Each covers different categories of people.
The Equal Opportunity Act
A good starting point is the Victorian Equal Opportunity Act because, in addition to sexual harassment, that covers about 19 different categories of people who are protected from discrimination. These range from some familiar categories, such as race, sex, disability, sexual orientation and age discrimination, to less well-known categories such as discrimination against parents and carers, gender identity, and physical features discrimination.
Because there are so many different protected categories, the first step is to go through each incident which has occurred and see if we can link it with one of the protected categories (race, sex, age etc) or a protected situation, such as sexual harassment.
If you do fall within one of those protected categories, the second step is to analyse whether the law recognises what you have suffered as « discrimination » or as sexual harassment, or whether you might be in another protected situation.
There are several different types of discrimination
The law recognises various types of discrimination, including direct discrimination, indirect discrimination, unreasonable failure to make reasonable adjustments for people with disabilities or unreasonable failure to accommodate people with parental or carer responsibilities.
Let’s start with direct discrimination. This can occur when someone treats someone less favourably or unfavourably because of a protected characteristic – for example, refusing to employ someone because of that person’s race or sex.
Indirect discrimination is quite interesting. Many people don't immediately recognise it as a form of discrimination,because everybody is treated the same, but that treatment, though equal on the surface, is unreasonable and has a negative impact on someone in a protected category. The technical definition is a little complicated (it involves the imposition of an unreasonable requirement, condition or practice that disadvantages a protected group) but it is easier to understand using a practical example. For example, an employer may say to a worker: “We want you to attend a group meeting at 6 p.m. every day so that we can go through various issues.”
Now, this worker is treated exactly the same as everybody else in the office, so on the surface, there is equal treatment, but this worker has parental responsibilities (having to pick a child up from childcare) which makes it difficult to comply with that requirement, because of parental responsibilities. If, in that case, the requirement to attend 6pm meetings is also unreasonable (because, for example, there are other alternatives), this could be a case of indirect discrimination.
The third type of discrimination recognised by the law assists people who have a disability, or parental or carer responsibilities, and need an employer to make reasonable changes to the workplace or work arrangements, to assist them. In the indirect discrimination example above, the parent might also ask “Can you change the time of the meeting to one which I can attend without difficulty?” That type of change would accommodate that person's parental responsibilities and, if unreasonably refused, could be a separate type of discrimination.
Or, a person with a disability might say: “Well I can do the work, but I can't get into the workplace unless you widen a door, because I'm in a wheelchair.” Or, “I might need an optical character reader so that I can use my computer.” That’s a request for an adjustment, which, depending on the circumstances, may be very reasonable and, if unreasonably refused, could be discrimination.
If an employer unreasonably refuses to make such adjustments that is be a separate type of discrimination.
To summarise, in cases of discrimination, there are two broad questions to be asked: first, are you in a protected category, and secondly, have you suffered “discrimination” within the meaning of the law ? If you satisfy those two considerations, then we can look at whether you can sue for compensation for financial loss and/or pain and suffering. And we can also look at instituting some practical solutions, such as training in the workplace for eliminating inappropriate behaviour, or perhaps even an apology.
There are also other types of unlawful behavior under anti-discrimination laws, such as sexual harassment. This is defined as an unwelcome advance, an unwelcome request for sexual favours, or any other unwelcome conduct of a sexual nature in relation to another person, in circumstances where a reasonable person would expect the target of the conduct to be offended, humiliated or intimidated.
Using the laws
Many people experience discrimination or sexual harassment but find it difficult to speak up about it. It is important for them to know that the law protects them and that they have rights.
The process for making a complaint of discrimination or sexual harassment will be different, depending on which law you select. Under the Equal Opportunity Act 2010 (Vic), there is an optional process for taking a complaint to the Victorian Equal Opportunity and Human Rights Commission for a conciliation (though note that this can occur only if the other side agrees). Or you can take the case directly to the Victorian Civil and Administrative Tribunal.
If you use a Commonwealth law, such as the Racial Discrimination Act, the Sex Discrimination Act, the Disability Discrimination Act or the Age Discrimination Act, you must first make a complaint to the Australian Human Rights Commission, which will attempt to conciliate the matter. If conciliation does not succeed, the case can proceed to a hearing by the Federal Court or Federal Circuit Court.
There are a several factors to consider in choosing which law best suits your needs, so be careful to ensure that you have made the right choice.
What can I do about discrimination or sexual harassment?
If you think you do have suffered discrimination or sexual harassment, there are a number of things you can do.
A good first step is to obtain up-to-date information about your rights. You can get that information from a trade union, government authorities, community legal centres or a law firm.
You should also make sure to consult your doctor if the offending behavior is affecting your health.
Once you have the information, you can decide whether you need to have formal representation (such as a lawyer), or whether you can represent yourself. In some cases, people represent themselves and do perfectly well.
You may be able to raise the matter with your employer, using internal policies or procedures. However, there is no obligation to do this, especially if there are concerns about whether the process will be a fair one. In such cases, you can choose to make an external complaint under the laws set out above.
In some cases, especially if you are going through a difficult time and do not feel emotionally strong enough to represent yourself, you might find it useful to have somebody else assist you.
There are several levels of assistance that a firm like ours can provide.
We can advise about strategy – for example, how you might wish to handle things at work and what to say to your employer. Or, if you wish, in some cases, we could arrange negotiations with the employer and represent you at a conciliation. We can also take steps to represent you at a hearing before VCAT or a Court.
Finally, this can be a complex area, so the correct approach will always depend on the particular circumstances. As noted earlier, obtaining the correct information is crucial. Once you know your rights, you can make informed decisions.