Discrimination Vs. Harassment in the Workplace

Workplace discrimination and harassment are both serious issues that should never be tolerated in any workplace. While the distinction between the two issues may appear murky at times, legally there are slight differences in the situations to which they apply.

What is discrimination?

Fair Work Act 2009

Firstly, section 351 of the Fair Work Act 2009 (Cth) prohibits workplace discrimination. It states that:

“An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.”

The FWA explains “adverse action” using a broad definition including threatening or organising the following:

  • dismissal
  • injury
  • demotion
  • decisions to not hire

However, an action will not be considered discrimination under the FWA unless it is also discrimination under statutes such as:

  • Age Discrimination Act 2004 (Cth)
  • Disability Discrimination Act 1992 (Cth) (DDA)
  • Racial Discrimination Act 1975 (Cth) (RDA)
  • Sex Discrimination Act 1984 (Cth) (SDA)
  • or other state legislation

State legislation

An example of state-based legislation that governs discrimination generally is the Anti-Discrimination Act 1977 (NSW). This NSW legislation prohibits discrimination against applicants, employees, and contract workers based on factors such as:

  • race
  • sex
  • transgender grounds
  • marital or domestic status
  • disability
  • a person’s responsibility as a carer
  • homosexuality
  • age

Furthermore, according to this statute, actions amounting to discrimination include:

  • treating someone less favourably than someone else in the same or similar circumstances
  • segregating someone
  • requiring someone to comply with a requirement or condition that they are unable to comply with and is unreasonable for them

For more information on the scope and consequences of discrimination under the FWA see here.

Australian Human Rights Commission Act 1986

The Australian Human Rights Commission Act 1986 (Cth) also regulates workplace discrimination. Schedule 1 Article 1 defines workplace discrimination as involving:

“any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which have the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation.”

The definition further elaborates that any “other distinction, exclusion or preference which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation” may be treated as discrimination after consultation with appropriate representative organisations.

Additionally, the Australian Human Rights Commission Regulations 2019 (Cth) have more expansive factors for discrimination including:

For an overview of the AHRC legislation see this summary.

For an overview of all the legislation that governs workplace discrimination, take a look at this AHRC guide.

What is harassment?

Much of the same discrimination legislation also regulates harassment.

Sex Discrimination Act 1984

The SDA firstly defines sexual harassment as unwelcome sexual advances or “other unwelcome conduct of a sexual nature” that a reasonable person would recognise had a possibility of offending, humiliating, or intimidating the victim. It further elaborates that the assessment of the possibility takes into account the personal characteristics of the victim. In relation to the workplace, the SDA prohibits workplace participants from harassing other workplace participants at the “workplace of either or both of those persons.” This includes:

  • employers harassing employees, contract workers, commission agents and prospective workers
  • workers harassing each other or other prospective workers
  • partners harassing other people or prospective partners

The SDA provides further rules specific to certain organisations and professions such as educational institutions.

Disability Discrimination Act 1992

The DDA also prohibits harassment in relation to disabilities by employers against employees, contract workers, commission agents and other prospective workers. However, the DDA does not provide a definition of disability harassment.

Racial Discrimination Act 1975

Similarly to the harassment provisions, the RDA includes sections regulating racial hatred. The RDA outlaws public acts where at least one of the reasons for doing the act was “the race, colour or national or ethnic origin of the other person or of some or all of the people in the group” and the act was “reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people.” If an employee or agent commits a public act motivated by racial hatred in connection with their work duties, the employer will be held liable unless they took all reasonable steps to prevent the act.

Fair Work Act 2009

The FWA likewise includes similar sections prohibiting workplace bullying. The statute defines workplace bullying as repeated unreasonable behaviour that creates a risk to health and safety. Workers who believe they are being bullied can apply to the Fair Work Commission (FWC) for an order to stop bullying. Moreover, disobeying an order to stop bullying can attract hefty fines.

For more information on harassment and bullying see this AHRC summary or this FWC summary.

What are the differences?

As can be seen from the above explanations, workplace discrimination is behaviour that affects the worker’s employment prospects and conditions, while harassment is generally behaviour that affects the worker in a more personal manner. While discrimination is always rooted in a factor such as race, age, or disability, bullying relies on repeated behaviour and may not have such factors.

What should you do?

As an employer it is important to protect yourself, your workplace and your staff from workplace discrimination and harassment. Consider setting up an investigation policy. Want more assistance in setting up good workplace practices? Consider these resources from the Fair Work Ombudsman.

As a worker, if you feel like you have been a victim, you can seek assistance and information from both the AHRC and FWC. Complaints can be made to the AHRC or the Fair Work Ombudsman.

Before engaging in any formal legal action you should consult resources from the AHRC and FWC, and talk to an employment lawyer.

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