Unlawful sex discrimination

All employers have a responsibility to make sure that their employees, and people who apply for a job with them, are treated fairly. Taken together, they make certain types of workplace behaviour against the law. As an employer you need to prevent discrimination, harassment or bullying from occurring in the workplace. Discrimination occurs when a person, or a group of people, is treated less favourably than another person unlawful sex discrimination group because of their background or certain personal characteristics.

For more information see the relevant fact sheets. For more information see the Other areas of workplace discrimination fact sheet. Some state and territory laws protect people from discrimination on the basis of additional personal characteristics. For more information, see A quick guide to Australian discrimination laws.

Under discrimination law, it is unlawful to treat a person less favourably on the basis of particular protected attributes such as a person’s sex, race, disability or age. Treating a person less favourably can include harassing or bullying a person. The law also has specific provisions relating to sexual harassment, racial hatred and disability harassment. It is important to understand that a one-off incident can constitute harassment. Sexual harassment is broadly defined as unwelcome sexual conduct that a reasonable person would anticipate would offend, humiliate or intimidate the person harassed.

The Disability Discrimination Act 1992 prohibits harassment in the workplace based on or linked to a person’s disability or the disability of an associate. The Racial Discrimination Act 1975 prohibits offensive behaviour based on racial hatred. Racial hatred is defined as something done in public that offends, insults or humiliates a person or group of people because of their race, colour or national or ethnic origin. If issues are left unaddressed, a hostile working environment can develop which can expose employers to further complaints. The Fair Work Amendment Act 2013 defines workplace bullying as repeated unreasonable behaviour by an individual towards a worker which creates a risk to health and safety.

Bullying behaviour can range from obvious verbal or physical assault to subtle psychological abuse. Legitimate comment and advice, including relevant negative feedback, from managers and supervisors on the work performance or work-related behaviour of an individual or group should not be confused with bullying, harassment or discrimination. Providing negative feedback to staff during a formal performance appraisal, or counselling staff regarding their work performance, can be challenging. Managers should handle these conversations with sensitivity but they should not avoid their responsibility to provide full and frank feedback to staff. Employers need to be aware of their responsibilities to ensure that the working environment or workplace culture is not sexually or racially hostile. Employers should develop and implement targeted practices to address inappropriate workplace behaviour and deal effectively with any complaints.

Employers should also be proactive in addressing hostile behaviour that may be embedded in the workplace culture. Examples of a potentially hostile working environment are where racially or sexually crude conversations, innuendo or offensive jokes are part of the accepted culture. An employee can complain about such conduct as harassment even if the conduct in question was not specifically targeted at him or her. Under occupational health and safety legislation, employers and employees are required to comply with any measures that promote health and safety in the workplace.

Because of this duty, employers need to eliminate or reduce the risks to employees’ health and safety caused by workplace bullying. As of 1 January 2014, the Fair Work Ombudsman can receive complaints from workers who believed they have been bullied at work. Further information is available at www. These documents provide general information only on the subject matter covered. It is not intended, nor should it be relied on, as a substitute for legal or other professional advice. If required, it is recommended that the reader obtain independent legal advice.

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