Discrimination happens when a person is treated unfairly, or less favourably, because of their age, race, disability, religion, sex, sexual orientation, political belief, or another attribute that is protected under the law. It can be direct or indirect.
Workplace discrimination is against the law. There are anti-discrimination laws that apply to both paid and unpaid workers.
Workplace discrimination can happen at any stage, from hiring or engaging a worker, during the period of work, through to decisions about ending work. It may relate to what role a person is offered, how much they are paid, or whether or not they are promoted or re-contracted.
Workplace discrimination is a serious issue but there can be different laws depending on where you are so sometimes it’s hard to know where to go for help.
Sometimes a person is right for a job because they have a particular attribute. Sometimes a more equitable workplace means making accommodations for people with particular attributes.
What the law says
Anti-discrimination laws protect people’s right to participate equally in ‘public life’.
There is no strict definition of public life, but it basically includes any aspect of your life that happens in the public realm. This includes employment and education.
There are both federal laws and state and territory laws that protect people from discrimination. There are some differences between these laws about who is covered.
However, there are laws that protect paid and unpaid workers, including board and committee membership, volunteering, unpaid internships and other forms of formal unpaid work. The law also provides protection for interactions with audience members, patrons and customers.
All people in Australia are protected by the Commonwealth anti-discrimination laws. You do not have to be an Australian citizen, permanent resident or on a particular type of visa to be protected. Commonwealth anti-discrimination laws protect against both direct and indirect discrimination.
State and territory laws sometimes overlap with the Commonwealth laws. Sometimes these provide extra, or slightly different, protections, and sometimes there are gaps in the laws. Wherever there is overlap, both laws apply.
In addition, the Fair Work Act prohibits work-related discrimination against employees and contractors. Most workers in Australia are covered by this law.
Which attributes are protected by law
There are different anti-discrimination laws in Australia, depending on where you work. They generally cover the same types and areas of discrimination, including:
- age
- disability
- gender and sex
- parent and carer responsibilities
- pregnancy and breastfeeding
- sexual orientation and gender identity
- marital and relationship status
- race and ethnicity
- religion and certain other beliefs and activities.
Workers may also be protected from discrimination based on:
- political opinions
- criminal record
- social origin (for example, class, caste or socio-occupational status)
- family and domestic violence.
Learn more about some of the different types of discrimination.
Keep learning:
Discrimination in employment on the basis of criminal record
Australian Human Rights Commission
Learn moreProhibition on adverse action because of family and domestic violence
Fair Work Commission
Learn moreWhat is discrimination?
Discrimination happens when a person is treated unfairly, or less favourably, because they have one or more of the attributes or characteristics protected by law.
Workplace discrimination can happen at work, offsite at work events, online on social media or in digital workspaces, and even outside of work hours.
In the workplace, discrimination may look like:
Harassment
Harassment is any unwelcome behaviour that a reasonable person would consider to be offensive, embarrassing, intimidating, threatening or humiliating. Unlike bullying, a single incident can be harassment.
Harassment is always inappropriate but, in some cases, it’s also against the law. In Australia, workplace sexual harassment, sex-based harassment, harassment based on a person’s disability and racial hatred are against the law. If harassment is repeated, it may also be bullying. Workplace bullying is against the law.
Your employer has a responsibility to do what it reasonably can to ensure that you are safe at work. This includes both physical and psychological safety. Harassment creates a risk to psychological safety and is therefore something that employers need to take seriously. Some examples of harassment include:
- making an inappropriate comment or joke about a person
- laughing when someone makes a simple mistake or trips over something
- making a threatening remark such as, ‘If you do that again, I’m going to punch you’
- making fun of someone, or a group of people, in front of others.
Examples of harassment that is against the law include:
- telling insulting jokes about particular racial groups (racial hatred)
- sending explicit or sexually suggestive emails or text messages (sexual harassment)
- displaying racially offensive or pornographic posters or screen savers (racial hatred)
- making derogatory comments or taunts about someone’s race (racial hatred)
- asking intrusive questions about a person’s body (sex-based harassment).
Learn more about harassment.
Stereotyping
Stereotyping is making an assumption about a person, or a group of people, because of a particular characteristic. Stereotypes are often not true and can be very harmful.
Examples of stereotypes include:
- Men make better leaders than women
- Women are more caring than men
- Asians are good at working with computers
- Older workers are just counting down the days until they can retire
- People who are blind can’t use computers.
Victimisation
Victimisation is subjecting, or threatening to subject, another person to a detriment on the basis that the person has made, or proposes to make, a workplace discrimination complaint.
It can be thought of as:
- unfairly treating or retaliating against a person
- because they made a complaint, or raised concerns
- about unacceptable workplace behaviour.
Learn more about victimisation.
Direct or indirect discrimination
Direct discrimination is often the most obvious kind of discrimination. It happens when someone is treated less favourably because of their protected attribute.
Examples of direct discrimination could include:
- Joe — Joe isn’t offered a touring opportunity because his wheelchair makes arranging transport internationally ‘too hard’.
- Miguel — Miguel and Sally are both employees who are prone to submitting their timesheets late. Sally is given a formal warning. Miguel isn’t.
- Min — Min’s evening ushering shifts are cut back because she is pregnant and ‘really ought to be home resting more in her condition’.
- Fahrad — Retiree Fahrad’s application to be a volunteer at the film festival is rejected because ‘it’s really more a younger persons’ vibe’.
Indirect discrimination can be harder to spot. It happens when something applies to everyone in the same way but it unfairly affects a person because of a protected attribute.
Examples of indirect discrimination could include:
- Penny — Penny applies for a job selling digital subscriptions to an electronic journal. The publication has a strict 9 am start time. She turns down the job because she can’t get there in time after school drop off.
- Ari — Ari works for a gallery that has a ‘no sitting’ policy for attendants. Ari is unable to stand for long periods due to a disability and asks whether he can sit during his shift. He has to resign when they say it’s against the policy.
- Phillip — Phillip and Joni are lighting technicians doing the same work for the same company. Phillip works part-time so that he can pick his kids up from school every day. When Phillip asks why Joni was given a pay rise and he wasn’t, he’s told ‘the pay rise was only for full time employees.
- Tina — Tina applies for a role teaching art at a local community centre. At her interview, she is told that they cannot offer her the role because her traditional facial tattoos violate their no visible tattoos policy.
Different types of discrimination
There are different types of discrimination. This section describes some common types of discrimination:
- racial discrimination
- sex-based discrimination including gender identity discrimination
- age discrimination
- religious discrimination
- political belief discrimination
- disability discrimination.
People can experience more than one type.
When a person faces overlapping discrimination due to multiple aspects of their identity they face unique disadvantages and increased marginalisation.
For example, a woman’s gender and race can expose her to overlapping sexism and racism (gendered racism). This greatly increases her marginalisation.
Understanding that discrimination can overlap is referred to as intersectionality.
What is racial discrimination?
Racial discrimination is where there is unfair and less favourable treatment against someone because of their race, ethnicity or skin colour.
It can be obvious, like:
- racist comments or jokes
- unequal treatment.
And it can be less visible, like:
- biased decision-making
- backhanded compliments
- tokenism.
Sometimes, racial discrimination intersects with religious discrimination.
Understanding racial discrimination
To understand racial discrimination, it can help to know about:
Aboriginal and Torres Strait Islander experiences
As First Peoples, Aboriginal and Torres Strait Islander people have a unique experience of racism.
Common forms of racial discrimination that First Nations people experience in the workplace include:
- cultural load
- tokenism — for example, when being featured by art centres or at other arts events
- workplace policies that don’t account for cultural obligations — for example, Sorry Business, cultural events and ceremonies.
Through the First Nations First – What We Heard report (PDF), the First Nations arts and culture sector has expressed the need for greater cultural safety, accessibility and awareness of Indigenous Cultural and Intellectual Property (ICIP) protocols, workforce capacity, training and development and equitable investment.
Learn more about building strong, respectful, and culturally safe First Nations relations in the creative sector.
Anti-racism
Anti-racism is an active process of opposing racism and promoting racial equality, especially at a systemic level.
It can be done by anyone — individuals, organisations and governments.
The Creative Equity Toolkit has a range of anti-racism resources to help you take action.
The National Anti-Racism Framework offers a roadmap for businesses and community organisations to address racism in Australia.
Diaspora
A diaspora is a community of people who live outside their ancestral homeland and who maintain strong cultural, emotional or social connections to where they come from.
These communities can include migrants, refugees and their descendants.
Migrant diasporas are shaped by shared histories, identities and experiences. Their connections often stretch across countries and borders.
Race and nationality
Race and nationality are different.
Race, or ethnicity, generally refers to a shared cultural or historical identity based on ancestry, heritage or language.
Nationality refers to legal and political membership – that is, where you vote and which passport or citizenship you have.
A person can be of one race and of a different nationality.
Racial hatred
Racial hatred is doing or saying something in public, including in the workplace, which is likely to offend, insult, humiliate or intimidate based on the race, colour, national or ethnic origin of a person or group of people. It is against the law.
The Department of Home Affairs has helpful information on addressing hate.
Learn more about racial hatred.
Taking action as a bystander
Witnessing racism can be uncomfortable. But when bystanders stay silent, it sends the message that racism is acceptable.
Speaking out against racism can make the person being targeted feel supported. It can also make the person being hateful reconsider their behaviour.
Even though it might feel awkward, a simple gesture can be powerful. A simple statement like ‘That’s not OK’ sends a strong message of support and sets a clear standard of behaviour.
Don't put yourself at risk. But if it is safe to do so, act.
We really like these tips for bystanders from the Australian Human Rights Commission.
Learn more about what to do if you see or hear about discrimination at work.
Keep learning:
Keep learning:
What is sex-based discrimination?
Sex-based discrimination is where there is unfair and less favourable treatment against someone because of characteristics including:
- sex
- marital or relationship status
- pregnancy or potential pregnancy
- breastfeeding
- family responsibilities
- sexual orientation
- gender identity and
- intersex status.
It can be direct or indirect discrimination.
An example of direct discrimination is not hiring someone qualified because of their gender identity.
Indirect discrimination is when a rule or policy that applies to everyone disadvantages someone because they have one or more of the characteristics in the list above. For example:
- A workplace policy that only full-time workers can apply for promotions — women are more likely to work part-time as parents than men, so this may indirectly discriminate against women.
- An organisation that requires all job applicants to identify their gender as male or female in the online application form — people whose gender identity is neither male nor female being required to take additional steps to accurately identify themselves may indirectly discriminate against them on the basis of their gender identity.
Learn about:
- sexual and sex-based harassment as a type of harassment
- the positive duty — the legal obligation that businesses and organisations to prevent sexual and sex-based harassment
What is age discrimination?
Age discrimination is when a person is treated less favourably because of their age or age group.
Age discrimination more commonly affects older people but it affects younger people too.
It can be direct or indirect discrimination.
For example:
- Direct discrimination — Noah is 25 years old. They apply for a management role. The role is given to someone less qualified and with less relevant experience. The organisation tells Noah that they are simply ‘too young’ for the job.
- Indirect discrimination — Maria is in her early 60s and works as a script writer for a television show. There is a writer’s room at head office. When writers are promoted, they also get to work on set. The company requires all workers to pass a physical fitness test before they are allowed on set. Her fitness is not relevant to her role as a writer. Maria fails the fitness test. She is not offered a promotion to work on set.
What is religious discrimination?
Religious discrimination is when a person is treated less favourably or unfairly because of their religion.
Australia is home to a wide range of religious communities, including Christian, Hindu, Jewish, Muslim, Sikh and other faith communities. Many are closely connected to migrant and diaspora experiences.
Religious discrimination can be direct or indirect discrimination. Sometimes, religious discrimination intersects with racial discrimination.
Religious discrimination can take many forms, from overt hostility and harassment to more subtle exclusion, such as:
- inflexible workplace practices
- stereotyping
- assumptions about belief, behaviour or values.
For people whose religious identity intersects with race, culture or migration status, the impacts of discrimination can be compounded.
Religion and race in the diaspora
Religion and race are often both a strong part of the diaspora experience.
Many faiths are considered ethno-religions because of the close relationship between faith, culture, ethnicity and race.
Common ethno-religions include:
- Hinduism
- Judaism
- Shinto Buddhism
- Sikhism
- Taoism
Religious discrimination is not always the same as racial discrimination — but they can intersect.
For example:
- Antisemitism and anti-Israel sentiment are distinct but they can overlap. Visit The Australian Special Envoy for Countering Antisemitism to learn about countering antisemitism.
- Islamophobia and anti-Arab sentiment are distinct but they can overlap. Visit The Australian Special Envoy for Combatting Islamophobia to learn about combatting Islamophobia.
Keep learning:
Keep learning:
What is political belief discrimination?
Discrimination on the basis of political belief happens when because a person is treated unfairly or less favourably because of their political beliefs, opinions or actions.
For example, discrimination because of:
- your decision to attend a protest
- being a member of a political party
- being a member (or non-member) of a trade union,
- posting your political opinion to social media.
Different workplace and anti-discrimination laws relating to political belief-based discrimination apply in different states and territories.
Learn more about where to get help with unacceptable workplace behaviour.
What is disability discrimination?
Disability discrimination is when a person is treated less favourably or not given the same opportunities as others in a similar situation because of their disability.
It can be direct or indirect discrimination.
Learn more about disability and workplace discrimination.
Making reasonable adjustments
Australian law requires employers to make ‘reasonable adjustments’ to support the participation of people with disability in the workplace.
Basically, a reasonable adjustment is something that a workplace can do that is not too expensive, difficult or time consuming to implement.
What is considered reasonable is different for each workplace. For example, what is reasonable for a large business with lots of resources may not be considered reasonable for a small business.
Sometimes, reasonable adjustments don’t cost anything at all.
|
What is preventing the worker from participating in the workplace? |
What is a possible reasonable adjustment? |
|---|---|
|
Sara, the Director of an upcoming dance production, is temporarily using a wheelchair because of a recent accident. While she is using the wheelchair, she cannot access their allocated rehearsal room, which is down three steps. |
Install a wheelchair-safe ramp at the entrance to the rehearsal room Relocate rehearsals to an accessible space. |
|
Moses works in grants and fundraising for a small arts foundation. He is vision impaired. The organisation upgrades their office technology. Moses cannot read documents or emails on the new computer because his existing screen reader is incompatible with the new operating system. |
Install new assistive technology that is compatible with the new operating system on Moses’s computer. Allow Moses to continue using the old operating system |
|
Harry is a curator for a large gallery. He takes medication to manage his schizophrenia. The medication makes him very drowsy in the mornings. His previous supervisor, who he worked with for several years, supported him to adjust his working hours so that he could start later. His new supervisor prefers getting together “first thing”. She has moved their weekly meetings from 11am to 9am. |
The meetings could be rescheduled to a time that suits everyone on the team. Note: Harry has no obligation to disclose his disability if he does not want to. There are many reasons why a person may not be able to attend a 9am meeting. |
Learn more about reasonable adjustments.
It is not discrimination if —
Exceptions sometimes apply to specific personal characteristics in particular circumstances.
It is not discrimination:
If a particular attribute is more suitable
An organisation may favour a particular characteristic if that better meets the needs of the people it is serving.
For example, actively seeking to engage a First Nations arts officer who is a First Nations person.
If the job requires specific attributes
An organisation may need a person to have certain attributes in order to be suitable for the job.
For example:
- An art studio may engage a life model of a particular age in order to teach particular skills
- A person of a particular gender may be cast in a role written for that characteristic.
If it is not safe
A person may be treated differently because their attribute means they wouldn’t be safe.
For example, temporarily assigning a pregnant set builder to alternative duties in place of her ordinary work handling toxic chemicals.
If it is to increase participation
This is sometimes called ‘positive discrimination’. It’s when a person with a particular attribute is favoured in order to increase the participation of an under-represented group in a particular area of work or public life.
For example, hiring a qualified woman into a leadership position in a sector where most leaders are men.
If they can’t meet the inherent requirements of the job
It is not discriminatory to let someone go, or choose not to engage them, if they can’t meet the inherent requirements of the job.
Inherent requirements are the essential activities of the job, the ones that are non-negotiable or where there can be no flexibility.
When trying to work out what the inherent requirements of a job are, it can be helpful to think about what needs to be done versus how it’s done.
In practice:
Do you need to be able to stand up to talk about art?
Ari works as a gallery attendant. His core duties are explaining art to visitors and helping them find their way.
The gallery has a policy that gallery attendants stand during their shift.
Ari is unable to stand for long periods due to a disability.
His ability to stand for long stretches is not an inherent requirement of the job.
Do you need to work 9 to 5 to monitor the festival inbox?
Samaneh applies for a short-term contract communications assistant role for an upcoming festival. The core duties of the role are to monitor the festival’s email inboxes and respond to all inquiries within 24 hours.
It is a remote role. The work hours are advertised as 9am to 5pm. Samaneh has a long-term illness that requires attending regular medical appointments. In her previous roles, she was able to work flexibly in order to make up the hours when she was attending appointments.
Her ability to work from 9am to 5pm is not an inherent requirement of the job.
Can you serve drinks at a bar if you are under 18?
Rex applies for a role at their local theatre’s bar. The core duties include serving alcoholic and non-alcoholic drinks and snacks to patrons before and after shows.
Rex is 17. It is against the law for minors to serve alcohol.
Rex is told that the theatre cannot hire them because of their age but that they may like to consider re-applying when they turn 18.
Being able to serve alcohol is an inherent requirement of the job.
How to deal with discrimination in the workplace
Sometimes it’s not immediately clear what to do or who to speak to in your workplace if you think you, or someone else, is being discriminated against. It can be even less clear if you are a freelancer or self-employed or if you are working in a collaboration with other artists.
We have information about:
- what to do if you think you’ve been discriminated against
- what to do if you see, or hear about, someone being discriminated against
- what to do if it is your role to respond to workplace discrimination.
Where to go for help
If you think you have been discriminated against — There is probably more than one option for getting help to try and resolve it.
It will be up to you to decide what course of action is the best one for you. What you choose to do will depend on where you are, what type of discrimination you’ve experienced, and what you want the outcome to be.
Find out about where to get help with unacceptable workplace behaviour.
If you’re not sure which action to take, there are organisations that can help you decide. Find out where to find support.
If you need help responding to discrimination — There are various organisations that offer help and advice. Find out where to find support.
More in this section:
Unacceptable workplace behaviours
Bullying, harassment and discrimination are unacceptable in the workplace. Everyone deserves a workplace that is safe and respectful. There is help available when they are not.
Workplace bullying
There are laws in Australia that protect people from bullying at work. There are laws that apply to both paid and unpaid workers. It doesn’t have to be intentional – and it can do harm.
Workplace harassment
There are laws in Australia that protect paid and unpaid workers from workplace harassment. There are extra protections against sexual and sex-based harassment, disability harassment and racial hatred.
How to deal with unacceptable behaviour at work
This page sets out key steps for dealing with bullying, harassment or discrimination in creative workplaces. There is information for anyone who has experienced, seen or heard, or is responsible for responding to unacceptable behaviour at work.
Where to get help with unacceptable workplace behaviour
If you don’t feel safe asking for help in your workplace, or if you have gone through your workplace process but it hasn’t helped, there are a range of government agencies that can help with resolving the issue.
