Under the Equal Opportunity Act 2010 it is against the law for employers to treat, or propose to treat, someone unfavourably because of a personal characteristic protected by law. It is also against the law for employers to sexually harass someone.
What does employment include?
The Act applies to employers of all sizes and covers all types of workers, including full-time, part-time and casual employees, agents and contract workers, and trainees and apprentices.
Discrimination is against the law in all stages of employment, including recruitment, returning to work after injury or illness, dismissal and retrenchment. The Act also covers employment related areas, such as partnerships, industrial organisations and qualifying bodies.
How can discrimination in employment happen?
Discrimination in employment can include:
- the recruitment process. For example, job advertisements or interviews being inaccessible because of your disability
- being offered unfair terms of employment. For example, because of your race or religion
- being denied access to training. For example, because of your age
- being refused or having limited access to opportunities for promotion, transfer or other employment benefits. For example, because of your parental status
- being unfairly dismissed, retrenched or demoted. For example, because you become pregnant.
The only type of employment not covered is work carried out on a voluntary or unpaid basis. However, the law does protect volunteers from sexual harassment, and volunteers may also be protected from discrimination in certain circumstances.
Examples of discrimination in employment
Li-Huei unsuccessfully applies for a job as a receptionist with a large hotel. When she calls the human resources manager to ask why she did not get the job, she is told that the manager doesn’t want to employ a receptionist with an accent.
Alison is asked her age at a job interview and is then refused the position because the employer wants a younger person for the role.
Are there any exceptions to the law?
The Equal Opportunity Act 2010 includes some exceptions, which mean that discrimination will not be against the law in particular circumstances.
Positive steps can also be taken to help disadvantaged groups using special measures, which is not discrimination under the law.
While the Act aims to ensure fair employment opportunities for all people, it does include a number of exceptions for employers that apply at different stages of the employment relationship. The following information is a guide only and is not a full list of exceptions. To avoid doubt about whether an exception might apply, please check the Act or seek further advice.
Discrimination in employment will not be against the law in the following circumstances.
An employer is required to make reasonable adjustments for a person with disability if adjustments are needed for the person to perform the requirements of the job. However, an employer could refuse to make adjustments if the person with disability could not perform the genuine requirements of the job even after the changes were made.
When an employer is providing welfare services that are special measures or that meet the needs of people with a particular characteristic, they may discriminate to select employees that best meet the needs of the clients.
For example, a support service for women who have experienced family violence may want to ensure that the counsellors it employs are female
Occupations that require specific characteristics
Some occupations may have a genuine requirement for an employee with a particular characteristic. In these cases, discrimination is not against the law. For example where an employer requires an employee:
- of a particular sex (to fit clothes or conduct body searches)
- with particular characteristics to ensure the authenticity or credibility of a dramatic or artistic performance, entertainment, photographic or modelling work
- with a particular political belief or activity to provide ministerial advice or to join the staff of a political party or politician.
Sometimes employment conditions or benefits are linked to a particular age. In these cases, discrimination is not against the law. For example:
- paying an employee under 21 years of age according to their age
- a superannuation fund setting the minimum age a person can receive their superannuation benefits.
Make a complaint to the Commission
If you think you have been discriminated against, sexually harassed, or vilified, contact us and talk about your concerns. Our dispute resolution service is free and confidential. We can send you information about the complaint process and if we can’t help you we will try to refer you to someone who can.
To make a complaint:
- contact us by phone, in person or email. We also have a free interpreter service
- submit your complaint online or download our complaint form
- chat to us online
Find out more about making a complaint.
Find out more
Find out more about discrimination in employment in the Workplace section of our website.
Employers can also find out more about their responsibilities in our Right Smart Employers Toolkits