Your rights and responsibilities as an employer

How anti-discrimination law applies to you

Under federal and state laws, it is against the law for employers to discriminate against employees and job applicants or to allow discrimination and harassment to occur within their organisations.

In NSW, employers must not treat job applicants and employees unfairly or harass them because of their:

• disability (includes diseases and illnesses)
  
• sex (includes pregnancy and breastfeeding) 
  
• race
  
• religion
• age
  
• marital or domestic status
  
• homosexuality
  
• transgender status
  
• carer’s responsibilities. 
  

It is also against the law to treat people unfairly or harass them because of the disability, sex, race, religion, age, marital or domestic status, homosexuality, or transgender status of any relative, friend or colleague of a job applicant or employee.

Employers, managers and supervisors must treat all their job applicants and employees on the basis of their individual merit and not because of irrelevant personal characteristics. They must also do their best to make sure that their employees are not harassing any other job applicant or employee. In the recruitment process, all jobs (including traineeships and apprenticeships) must generally be open to all people. 

Once people are in a job, they should be treated fairly in relation to salaries, employment packages, training, promotion, and other workplace benefits. Irrelevant personal characteristics such as age or pregnancy should play no part in their dismissal, retirement or selection for redundancy.

Employers should remove barriers that people with disability may face at work. Making these changes is known as reasonable adjustments or workplace adjustments. Examples of adjustments include flexible working hours, remote work options, changes to work premises and specialised hardware, software and equipment.

Benefits of following anti-discrimination law

• The best person gets each job. 
  
• The right employees are trained in the right skills.
  
• The best employees are promoted.
  
• Each employee’s skills are developed to reach their full potential irrespective of their personal characteristics.
  
• Everyone is able to work productively in a non-threatening and harassment-free environment.
  
• Your workforce reflects the diversity of the community.
  
• Your team and your organisation are more productive.
  
• You avoid fighting costly discrimination or harassment complaints.
  

Impacts of not following anti-discrimination law

• Reduced productivity. 
  
• Negative publicity. 
  
• The cost of dealing with a discrimination or harassment grievance within an organisation (staff time etc).
  
• The cost of employees going on stress leave and possible workers compensation claims.
  
• The cost of replacing staff who resign because of discrimination or harassment, and lowered productivity while new staff come up to speed.
  
• The legal costs of running a tribunal or court case.
  
• Compensation payable for discrimination or harassment complaints – the upper limit is $100,000 in NSW.  
  

Legal liability

In general, it is against the law for an employer to act in a discriminatory way. Depending on the structure in your organisation, the employer could legally be the individual owner of the business, the partners of a firm, the directors of the company, and so on.

When the employer (or someone who is specifically authorised to act on behalf of the employer such as a manager or supervisor) acts in a discriminatory or harassing way, the employer will be legally liable for the discrimination or harassment.

The employer is also legally responsible when an employee behaves in a discriminatory or harassing way, unless they can show that they took all reasonable steps to prevent the discrimination or harassment from happening. This is called vicarious liability.

You might be able to defend the claim of discrimination or harassment if your organisation can show that it has taken all reasonable steps to prevent discrimination and harassment.