Workplace discrimination laws – more nuanced than you may think Employees in Australian workplaces may be subjected to discriminatory practices by their employer. IEU Victoria Tasmania Industrial Officer Jessica Mekhael examines the circumstances and relevant legal framework involved in the prohibition of workplace discrimination and takes us through a couple of relevant cases. There are various federal, state and territory anti-discrimination laws operating throughout Australia which prohibit discrimination in a person’s employment on the basis of particular characteristics or attributes. The attributes on which discrimination are prohibited include age, employment activity, gender identity, disability, industrial activity, lawful sexual activity, marital status, parental or carer status, political belief or activity, pregnancy, race, religious belief or activity, sex, sexual orientation and personal association (whether as a relative or otherwise) with a person who is identified by reference to any of the aforementioned attributes. It is important to note that the attributes protected by antidiscrimination legislation vary in
each jurisdiction, and there may be exceptions or exemptions to unlawful discrimination depending on the jurisdiction. Largely, unlawful discrimination can be either direct or indirect. The general characteristic of direct discrimination is that the discriminatory act is done because of or, on the basis of, the particular attribute. Indirect discrimination usually occurs when a condition, requirement or practice is imposed, or is proposed, which is likely to disadvantage persons with a particular attribute and it is not reasonable. Adjustment for disability Most jurisdictions make it unlawful for an employer to refuse adjustments or accommodations for employees where such adjustments are required to enable the employee to perform their work. Generally, such provisions require that the adjustment or accommodation is reasonable in the circumstances or does not create an unjustifiable hardship to the employer. Generally, an employee who requires reasonable adjustments to their working conditions cannot assume
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their employer knows what adjustments are required and why. The Victorian Civil and Administrative Tribunal in Mulder v Victoria Police [2020] VCAT 428 found that it was not enough that Mulder advised that he would not work under Box Hill Police Station management or that he was open to working elsewhere as that information did not inform his employer or managers that he needed an adjustment because of a disability. In that case, Mulder brought a claim against Victoria Police, alleging amongst other things, that it had failed to make reasonable adjustments for his disability. One of the issues between the parties was whether Mulder had actually made a request for a reasonable adjustment. It was found that Victoria Police did not discriminate against Mulder when it refused to move him to another police station after he requested the move, as the employer was not aware that Mulder required this change because of his disability and there was no evidence before the Tribunal showing the employer had that information.
