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’re paid, or whether or not they’re 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. 

This page has information about:

• who is protected from workplace discrimination
• attributes that are protected — such as age, race, disability, religion, sex, sexual orientation, political belief
• what is discrimination and what is not.

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.

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.

It is not discrimination if —

Exceptions sometimes apply to specific personal characteristics in particular circumstances. 

It is not discrimination if:

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.

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.

Learn more about reasonable adjustments.

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.