Discrimination: What is it and does it apply to injured workers?

3662119499_729d8b6b3b_oThis is illegal:

Discriminating against someone based on race, colour, sex, religion, political opinion, national extraction, social origin, age, medical record, criminal record, marital or relationship status, impairment, mental, intellectual or psychiatric disability, physical disability, nationality, sexual orientation, and trade union activity.

What is Discrimination?

Discrimination occurs when someone is treated unfairly because they belong to a particular group of people or have a particular characteristic.

Many people have fixed ideas about groups of people who are different from themselves. If we aren’t careful, this can lead us to discriminate against people who belong to those groups.

(from the Anti-Discrimination Board of NSW)

What does the law say?

Australian States and Territories have differing anti-discrimination laws.

Despite the differences of detail between Australian jurisdictions, all legislation dealing with discrimination have the same paradigm or framework for identifying unlawful discrimination. Generally, for discrimination to be unlawful, an act or omission must:

    • be based on one of the grounds or attributes set out in the legislation, such as race, sex or disability;
    • fall within an area of activity set out in the legislation, such as employment, education, or the provision of goods or services;
    • result in some harm or less favourable treatment, whether by direct or indirect discrimination; and
    • not fall within an exception, exemption or defence.

The following laws operate at a state and territory level, with state and territory equal opportunity and anti-discrimination agencies having statutory responsibilities under them:

  • Australian Capital Territory – Discrimination Act 1991
  • New South Wales – Anti-Discrimination Act 1977
  • Northern Territory – Anti-Discrimination Act 1996
  • Queensland – Anti-Discrimination Act 1991
  • South Australia – Equal Opportunity Act 1984
  • Tasmania – Anti-Discrimination Act 1998
  • Victoria – Equal Opportunity Act 2010
  • Western Australia – Equal Opportunity Act 1984.

Commonwealth laws and the state/territory laws generally overlap and prohibit the same type of discrimination. As both state/territory laws and Commonwealth laws apply, you must comply with both. Unfortunately, the laws apply in slightly different ways and there are some gaps in the protection that is offered between different states and territories and at a Commonwealth level. To work out your obligations you will need to check the Commonwealth legislation and the state or territory legislation in each state in which you operate.

You will also need to check the exemptions and exceptions in both the Commonwealth and state/territory legislation as an exemption or exception under one Act will not mean you are exempt under the other.

(from the Australian Human Rights Commission)

In New South Wales:

Discrimination is covered under the Anti-Discrimination Act and is enforced by the The Anti-Discrimination Board of NSW which is part of the NSW Department of Justice. It promotes anti-discrimination, equal opportunity principles and policies throughout NSW. It administers the anti-discrimination laws, and handles complaints under the Anti-Discrimination Act 1977 (NSW)​​​.

For particular relevance to Injured workers:

It is generally against the law in NSW to treat you unfairly or harass you because you have a disability. This includes the following:

  • disability you have now;
  • a disability that someone thinks you have now, whether or not you actually have it;
  • a disability you had in the past, or that someone thinks you had in the past;
  • a disability that you will get in the future, or that someone thinks you might get in the future;
  • a disability that any of your relatives, friend, work colleagues or associates has now, had in the past or will get in the future; and
  • a disability that someone thinks any of your relatives, friends, work colleagues or associates has now, had in the past or might get in the future.

Anti-discrimination law covers a wide range of disabilities and health problems. These include the following:

  • physical disabilities such as paraplegia, cerebral palsy, vision impairment or hemiplegia following a stroke;
  • a disease that makes a part of the body or brain work differently, such as arthritis, multiple sclerosis, heart disease, diabetes, epilepsy or cancer;
  • a mental illness or psychiatric disability, such as anxiety, depression, bipolar disorder, schizophrenia or an eating disorder;
  • a behavioural disorder such as ADHD or Asperger’s Syndrome;
  • an intellectual disability such as Down syndrome;
  • a learning or cognitive disability such as dyslexia;
  • a change to a part of the body or brain after an accident or surgery;
  • a different formation of a body part, for example a missing or short limb; and
  • a virus or bacteria in the body that could cause disease or illness, such as hepatitis or HIV.
    Some disabilities may fall into more than one of these categories.
(from the Anti-Discrimination Board of NSW)

There are exemptions:

  • When being of a particular race or ethnic background is a ‘genuine occupational qualification’ as specified under section 14 of the Anti-Discrimination Act.
  • In some common sense cases (such as employing a women to clean womens toilets)
  • In other cases where the needs of Occupational Health and Safety override the capacity for everyone to work there (for example: the need for an aeroplane pilot to have 20/20 vision).

 

How can I tell if I am being discriminated against?

Discrimination can occur if you are:

  • Refused a job
  • Fired or have your shifts cut down
  • Denied training opportunities, transfers or promotions
  • Not being paid the same as someone else doing the same job, with the same experience and qualifications
  • An employer or fellow workmate is deliberately withholding information you need to do your job
  • Excluded or isolated by workmates or your boss
  • Given an impossible task
(Taken from: Law stuff.org.au)

How can I tell if I am being discriminated against?

  1. Suspicious interview questions: The questions deviate from your capacity to do the job to your physical or mental fitness to do the job.
  2. Treatment of other employees: Especially those with similar backgrounds to you. how does management and other workers talk about other people? Is there a diversity amongst staff and amongst management? Are there any other “diverse” background groups that are being put down in conversations or jokes?
  3. Harassment: Are other workers or management consistently testing your capabilities? talking about you or making fun of you? Do they exclude you? Do they load down the work and/or give you impossible deadlines? Do they do this to anyone else? Are you being micro managed (more than other workers)?
  4. Inappropriate increase in work loads: Are you constantly being assigned more work than anyone else? Is your current work being judged at more regular intervals than other workers?
  5. Given less responsibility: Is management taking work off you? Are other employees  taking over your work? Are you being moved to another area despite your capacity to continue working in the original area?
  6. Lack of support from other workers: Are they sidelining you? Are they not giving you information you need to do your work?

Discrimination can be direct or indirect -the company may just be pressuring you or they may have policies or practices (formal or informal) about they way they treat a group of people. However it comes about, you are likely to “have a feeling” before any particular sign happens that you can point to.

 

What can I do about it?

talk to someone. This might be your manager or someone else in the company but you can also talk to your union delegate or the following agencies:

FairWork Ombudsman

Anti-Discrimination Board of NSW

The Australian Human Rights Commission

So why does it happen?

Unfortunately that answer is vast. Employers are ordinary people in an extra-ordinary position (that of being in control of a business) where a lot rides on outcomes. As ordinary people they may have a prejudice against a particular group of people, they may be afraid of a particular group of people, they may even just like exerting power over other people. Its hard to give a categorical reason.

But, as people in charge of a business there is also an added element of risk. In essence their personal prejudices are brought out and expanded upon under the “risk adverse” thinking of management. Because of this someone who is unlikely to express any prejudicial or intolerant attitude in their personal life, may express it as an employer while deciding whether someone who is not (in their opinion “normal”) should be hired or remain hired.

There is no foundation in fact, and no evidence they rely on for this decision – just their personal prejudice.

So the prejudice becomes company policy and risk aversion is a reality – one that must be confronted. (check out “how the recruitment industry plays the race card” by Lisa Camille Robinson).