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The Australia Human Rights Commission states that under Federal and State legislation, Unlawful Discrimination occurs when someone, or a group of people, is treated less favorably than another person or group because of their:

  • race
  • colour
  • national or ethnic origin;
  • sex
  • pregnancy or marital status;
  • age
  • disability or impairment
  • religion
  • sexual preference;
  • trade union activity
  • or some other characteristic specified under anti-discrimination or human rights legislation.

These characteristics are also known as protected attributes.

The Fair Work Commission states that discrimination occurs in the workplace when an employer takes adverse action against an employee or prospective employee because of a protected attribute. We will learn more about Adverse Action shortly.

There can be a few exceptions to these laws where discrimination is not unlawful. For example, in the case were an organisation has been requested or needs to make alterations to the workplace to accommodate a disabled person and feels it cannot afford to do so, it may be able to claim “unjustifiable hardship”. The Disability Discrimination Act D.D.A does not define unjustifiable hardship. D.D.A. section 11 provides that, “in determining what constitutes unjustifiable hardship, all relevant circumstances of the particular case are to be taken into account”, including:

  • the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned
  • the effect of the disability of a person concerned
  • the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship
  • in the case of the provision of services, or the making available of facilities – an action plan given to the Commission under section 64.

Some organisations may apply to the Australian Human Rights Commission to be exempt from aspects of Equal Opportunity laws. Examples of applications include:

  • A university seeking to limit ‘end of career’ training on the basis of age
  • Female-only gyms denying access to males

Source: Information for Employers, Good practice, good business: Eliminating Discrimination and Harassment in the Workplace, Australian Human Rights Commission, 2015  Download a copy here: Eliminating Discrimination and Harassment in the Workplace


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eCompliance Training offers online Compliance Training to help employees understand the importance of avoiding inappropriate behaviours that put an organisation and its employees at risk. Versions for employees and contractors, as well as team leaders and managers are available. Custom and tailored versions are available, in addition to face-to-face training options.

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