There are numerous federal and State anti-discrimination and equal opportunity laws that impose various obligations on employers.

Under the Fair Work Act 2009, it is unlawful for an employer to take “adverse action” (i.e. less favourable treatment or dismissal) against a person because of a characteristic of the person. This includes a 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.

Where a claim is made, there is a “reverse onus” which means that the adverse action will be presumed to have been taken for the unlawful reason, unless the employer can prove otherwise. The adverse action provisions apply to current employees as well prospective employees.

In addition to direct discrimination, an employer can be liable for engaging in indirect discrimination. Indirect discrimination occurs when a particular practice is applied to all employees, but has the effect of disadvantaging a class of employees who have a particular attribute.

A common area of discrimination claims arises from employees who have long term injuries. Where an employer proposes to terminate an employee’s employment on the grounds of incapacity due to physical injury, the employer must be able to demonstrate that the employee is not able to carry out the inherent requirements of the position, and that any reasonable adjustments to accommodate the employee have been considered.

We can provide assistance to reduce the risk of discrimination claim, including preparing anti-discrimination policies, and providing employee training. We can advise on the risks associated with any decision that may breach anti-discrimination laws, and assist with the defence of any claims that are made.