Anti-Discrimination Policy

Overview

In line with its core values and its Code of Conduct [Insert link to policy], [the Company] is committed to building and maintaining a positive work environment by providing all of its employees and contractors with a workplace that is safe and conducive to productive activity. This policy is aimed at achieving equal opportunities and fair treatment in a work environment that is free of discrimination and victimisation.

This policy provides guidance to both employees and managers about the standards of workplace behaviour, outlines employee responsibilities around EEO and discrimination, and details how to report incidents of conduct that would breach this policy.

This Policy should be read with the Workplace Bullying and Harassment Policy [Insert link to policy].

Our equal employment opportunity (“EEO”) commitment

[The Company] is an equal opportunity employer. EEO means that employees are treated fairly and equitably, with employees judged on their ability to do their job based on merit (skills, qualifications and experience) rather than assumptions based on characteristics such as sex, race, marital status, disability, and other characteristics listed in paragraph 6.2.

At [the Company], we believe that all employees should be able to work in an environment free of discrimination and harassment. We recognise that employees cannot perform to the best of their abilities if someone at [the Company] is treating them unfairly, or in a discriminatory or harassing way because of an irrelevant personal characteristic. That is why we will not tolerate discrimination or harassment in our workplace.

[The Company] is committed to selecting, recruiting, training and promoting the best qualified people in all job classifications in a fair and non discriminatory manner. [The Company] aims to give every employee fair access to all workplace opportunities and benefits, free from sexism, racism, sexual harassment and other forms of discrimination and from victimisation and vilification.

How does this policy apply?

The policy applies to you if you are employed by [the Company] (whether full-time, part-time, casual or temporary) or if you are a contractor to [the Company].

This policy applies to conduct:

  • in the “workplace”. Note that in this policy, the workplace includes not only company premises but also any place where you are present for a purpose connected with work. This includes, but is not limited to, a client or customer’s premises and a hotel, club or function centre if you are attending a work-related conference or attending client or work team social events such as drinks and celebratory dinners. It may include your home (for example, if you are working from home);
  • that may affect the business of [the Company], its reputation, its customers, suppliers, staff or contractors or impact on relationships at work or work performance;
  • that occurs both within and outside normal business hours.

All employees are required to make fair, non-discriminatory decisions about all work related matters. This includes:

  • the recruitment and selection of new employees including interviews and decision making;
  • during employment, such matters as:
    • training and development opportunities;
    • work allocation;
    • hours of work;
    • salary levels and packages
    • leave arrangements (of all types);
    • parental leave;
    • performance assessment;
    • promotion opportunities;
    • disciplinary procedures; and
    • restructuring;
  • in terminating employment, whether for performance, conduct or as a result of restructure and redundancy.
    An important summary of the obligations under this policy

If this Policy applies to you, YOU MUST:

  • accept your responsibilities to the people you deal with during the course of your employment or engagement;
  • treat people with respect and courtesy at all times and in a fair manner;
  • respect the privacy of others in the workplace and avoid offensive conduct or behaviour; and
  • report any breaches of this policy that you witness.

YOU MUST NOT:

  • discriminate against a job applicant, employee, contractor or another person in the workplace;
  • harass or bully a job applicant, employee, contractor or another person in the workplace; or
  • victimise a person who has made a complaint, or any person involved in the investigation of a complaint, including a witness and/or the person complained about.
  • Conduct that would breach this Policy

If you engage in any of the following types of conduct, you will be acting in breach of this policy and possibly in breach of the law:.

  • Discrimination;
  • Harassment;
  • Vilification;
  • Victimisation; or
  • Aiding, abetting or assisting in any of the above.

 

What is “Discrimination”?

Discrimination is where a person (or a group of people) is treated less favourably, denied an opportunity or is made to feel intimidated, humiliated or insulted based on the group, class or category to which that person belongs rather than on individual merit, competence or suitability.

Australian law prohibits discrimination against employees or prospective employees on a variety of grounds (“attributes”), including:

  • Sex or gender, including lawful sexual activity, sexual orientation
  • Trade union activity, membership or non-membership
  • Religious beliefs or activities
  • Disability or physical impairment
  • Race (including racial vilification)
  • Family or carer’s responsibilities
  • Pregnancy
  • Political beliefs or activities
  • Intellectual impairment
  • Parenthood
  • Age
  • Retirement age
  • Irrelevant Criminal record
  • Breastfeeding
  • Marital status
  • Irrelevant Medical record
  • personal association with a person with one of these attributes
  • some other characteristic specified under anti-discrimination or human rights legislation

Discrimination is not only a breach of this policy but in most cases is against the law and can be the subject of legal proceedings against [the Company] and against you personally if you engage in such behaviour.

Australian law prohibits both direct and indirect discrimination.
Direct discrimination occurs where a person with one of the attributes listed above in paragraph 6.2 is treated less favourably than a person without the attribute would be treated in the same or similar circumstances.
Example: not promoting a person to a higher position because they are pregnant.

Indirect discrimination means requiring a person with an attribute listed above in paragraph 6.2 to comply with a general requirement or condition that they cannot comply with, but with which most people without that attribute are able to comply, and the requirement or condition is not reasonable in the circumstances. Thus, indirect discrimination occurs when an employment requirement or condition which may be neutral on its face, operates unfairly and is unreasonable in relation to a particular group.
Example 1: refusing to employ or promote a person to the position of supervisor unless they have completed Year 12 education or equivalent is likely to disadvantage persons from certain foreign countries where education is less accessible. Unless this level of education is necessary for the job, the requirement would be unreasonable and would amount to indirect discrimination.
Example 2: a requirement that employees work full time to receive a particular benefit may amount to indirect discrimination against employees with family responsibilities who require a flexible working arrangement.

Discrimination can be:

  • Explicit or implied, as long as it treats another person less favourably or makes them feel intimidated, insulted or humiliated based on at least one of the above grounds;
  • Intentional or unintentional behaviour;
  • Repeated or a once only incident.
  • Discriminating behaviour can include, but is not limited to:
  • Office jokes;
  • Making derogatory comments or taunts about someone in relation to one of the above grounds;
  • Asking intrusive questions about someone’s personal life;
  • Excluding or disadvantaging a person (or a group of people) based on one of the above grounds.

What is not discrimination?

  • Legitimate comments and advice from managers, including constructive feedback on performance or work related behaviour of an individual or group, is not discrimination.
  • The process of providing feedback to staff during a formal performance appraisal, or counselling staff regarding their work performance, will not always be free of stress. Managers should manage these processes with sensitivity; however, they should not avoid their responsibility to provide full and frank feedback to staff.

 

What is “Harassment”?

Harassment may be a form of unlawful discrimination, or it can occur separately to discriminatory behaviour (for which see the Workplace Bullying and Harassment Policy). Workplace harassment usually consists of a pattern of unwelcome behaviour. However, it can consist of just one act. In general, harassment is any form of behaviour that is unwelcome and that a reasonable person would have anticipated would:

  • humiliate someone;
  • offend someone; or
  • intimidate someone.

There is no requirement that the harasser intends to offend or harm in order for it to be unlawful. All that is required under the law is that a reasonable person would consider that the person being harassed would be offended, humiliated or intimidated by the behaviour in question.

Harassment may take the form of:

  • Unlawful and general harassment;
  • Sexual Harassment; or
  • Bullying (see the Workplace Bullying and Harassment Policy for more details on what constitutes bullying).

All forms of harassment will involve a breach of this policy, the Workplace Bullying and Harassment Policy, or both, and may be against the law. You should take note of both policies and commit to ensuring compliance with both.

Unlawful and general harassment occurs when:

  • someone is subjected to unwelcome conduct because of the attributes listed in 6.2 above (such as their race, sex, or marital status or some other characteristic specified under anti-discrimination or human rights legislation); and
  • the unwelcome conduct occurs in circumstances where the person harassed would be reasonably expected to feel offended, humiliated or intimidated.

The most common form of workplace harassment is sexual harassment. Under Australian anti-discrimination law, there is a specific test for sexual harassment which differs from other forms of workplace harassment. This test has a lower threshold.

Sexual harassment is behaviour of a sexual nature which is unwelcome and in circumstances in which a reasonable person, with regard to all the circumstances, would have anticipated the possibility of the person being offended, humiliated or intimidated by the conduct. There is no requirement that the harasser intends to offend, humiliate or intimidate another person. A person’s intention is irrelevant.

Sexual harassment of a fellow employee is unlawful even when it occurs outside of work hours and at a non-work location.

Sexual harassment includes but is not limited to:

  • making a sexual advance or persistent or continual requests for dates;
  • unwanted sexual compliments or excessive and unwelcome flirting;
  • requests for sexual favours;
  • suggestive comments about someone’s appearance or body;
  • remarks of a sexual nature about a person, their sex life or physical appearance;
  • asking questions or divulging confidences of a sexual nature;
  • leering or staring at a person or parts of their body;
  • suggestive behaviour, unnecessary physical intimacy, unwanted body touching or physically molesting a person,including
  • standing too close, excessively lengthy touching or body contact, touching; patting; pinching; kissing or embracing someone;
  • physical conduct of a sexual nature;
  • displaying or transmitting sexually offensive posters, handouts, emails or screen savers;
  • suggestive letters and drawings, including email;
  • gender-based insults or taunting;
  • smutty or sexist jokes; or
  • sexually suggestive behaviour including offensive body and hand movements;
  • indecent exposure, stalking, sexual assault and rape.

Sexual harassment does not refer to behaviour which is based on mutual attraction (which is consensual and acceptable to both parties), friendship and respect.

Harassment (including sexual harassment and bullying) can be physical, verbal or written. It can include words, pictures or statements. It can be transmitted by post, phone, fax, video, text message, email, a screen saver or via social media such as Facebook or Twitter.

It is important that you consider your actions carefully when interacting with people in the workplace. Different people and cultures have diverse attitudes about verbal and physical actions. When in doubt, you should refrain from saying or do anything that may be perceived to be unwelcome, offensive, humiliating, belittling, abusive, threatening or intimidating

Harassment can include behaviour such as:

  • telling insulting jokes about particular racial groups;
  • sending explicit or sexually suggestive text messages, social media messages or emails;
  • displaying offensive or pornographic posters or screen savers;
  • making derogatory comments or taunts about someone’s race or religion; or
  • asking intrusive questions about someone’s personal life, including their sex life.

Bullying in a workplace context is a form of harassment and involves repeated unreasonable behaviour towards a person by another person or group of people in the workplace which may be considered to be unreasonable or inappropriate workplace behaviour, or which creates a risk to health and safety. Unreasonable behaviour is such that a reasonable person, having regard to all the circumstances, could anticipate the behaviour would humiliate, intimidate, undermine or threaten. For more details, see the Workplace Bullying and Harassment Policy.

Bullying behaviour can range from very obvious verbal or physical assault to very subtle psychological abuse. For more details, see the Workplace Bullying and Harassment Policy.

 

What is “Vilification”?

Vilification is a particular form of harassment. It is also a criminal offence.
Vilification is inciting hatred of persons on the basis of their race, religion, disability, gender identity or sexuality. For example it may be:

  • equating a person with a particular attribute with an “animal”;
  • displaying or communicating offensive material on the basis of an attribute;
  • calling people names and making offensive comments on the basis of an attribute;
  • emails, “jokes” or graffiti that incite hatred toward a person or group on the basis of an attribute; or
  • threatening to harm a person with a particular attribute that affects how they dress (e.g. due to religious beliefs) unless they “learn to dress like everyone else”.

 

What is “Victimisation”?

Victimisation means any negative treatment of, or disadvantage imposed on, a person because they make a complaint or are involved in an investigation of a complaint under this policy. Victimisation also includes any conduct which disadvantages a person who is assisting or supporting a person who has been subjected to inappropriate behaviour.

Victimisation may take many forms including intimidation, exclusion from team or company activities, withholding opportunities, dismissing an employee or refusing a promotion, threatening a person or limiting their access to benefits.
Victimisation is a breach of this policy and in most cases is against the law.

If an employee lodges a complaint pursuant to State or Federal legislation, it is unlawful to victimise that employee or any person assisting with the complaint. There are penalties for individuals and corporations, which include fines and imprisonment.

Assisting Discrimination, Victimisation or Vilification

You will also breach this policy and may be breaching applicable laws if you assist or encourage another person to engage in the conduct prohibited by this policy. It is your responsibility not only to ensure you do not engage in prohibited behaviour yourself, but also to ensure you do not contribute to such behaviour being carried on by another person.

Discrimination or harassment outside the work premises

You should be aware that discrimination and harassment that takes place outside the work premises can still be unlawful conduct in the context of employment. You should note the definition of “workplace at 3.2 above. By way of example, you must not engage in such conduct at a work-related Christmas party; during phone calls or visits to another employee at his or her home. The policy also applies at all times whilst travelling on business.

If you attend other work sites to perform work, you are also prohibited from harassing employees working there.

Key message—if you are behaving in an unreasonable way to another person (because of the other person’s sex, marital status, or any other protected attribute) which does or could intimidate, offend or humiliate another person, you are likely to be engaging in discriminatory or harassing behaviour in breach of this policy and, in some cases, the law.

Consequences of a breach of this Policy

If you breach this policy, you will be subject to disciplinary action which may include:

  • counselling;
  • a verbal or written warning;
  • transfer;
  • demotion; or
  • termination of employment, either with or without notice.

You should be aware that you can be held legally responsible for your conduct as well as being subject to disciplinary action. This also applies if you aid, abet or encourage other persons in inappropriate behaviour such as harassment or victimisation.

Sexual harassment and victimisation is unlawful under the Sex Discrimination Act 1984 (Cth) as well as anti-discrimination legislation operating in every State and Territory. Unless [the Company] has taken all reasonable steps to prevent an employee from committing acts of sexual harassment or victimisation in connection with his or her employment, [the Company] is vicariously liable (that is, it is responsible at law) for that conduct. A breach of the policy may therefore result in a complaint being made against the offending employee and/or [the Company] in a court, tribunal or commission.

As a result of its potential liability for the actions of employees, [the Company] will take all potential breaches of this policy seriously. You need to be in no doubt about this and the potential serious consequences for you of engaging in conduct in breach of this policy.

Our respective responsibilities

[The Company]
[The Company] has a responsibility to take reasonable steps to prevent discrimination, harassment, victimisation and vilification from occurring in the workplace. This involves educating employees about inappropriate behaviour, putting this policy in place, implementing grievance procedures and ensuring compliance by all in the workplace.

If an employee makes a complaint regarding the behaviours discussed in this policy, [the Company] will take it very seriously and will deal with the complaint sensitively and in a confidential manner, so far as natural justice allows. The complaint will be investigated and, if substantiated, appropriate disciplinary action will be taken.

Any employee making a complaint will not be treated adversely or victimised for making a complaint. [The Company] recognises the importance of ensuring the complaint procedure is effective, confidential and fair.

Managers
Managers have an important role in the prevention of inappropriate workplace behaviour.
Firstly, Managers must ensure that they themselves do not discriminate against, harass, bully, victimise or vilify other employees or clients.

Secondly, Managers must ensure that their team understand and implement this policy. When they observe inappropriate behaviour, Managers must take steps to stop it and warn the person of the consequences if the behaviour continues. If a person approaches them with a complaint about inappropriate behaviour, they should take appropriate steps to resolve it. Appropriate steps may include informal discussions or in the case of a serious issue more formal investigation may be undertaken to establish the facts of the complaint.

Employees
Every employee is under a duty to ensure that he or she does not discriminate against, harass, victimise or vilify other employees, suppliers, customers, contractors or other persons, or aid, abet or encourage other persons in inappropriate behaviour. You should be aware that you can be held legally responsible for your unlawful acts and may also be subject to disciplinary action. In short, you must comply with this Policy and any related policy.

You also have a duty to report conduct that you see happening to others. You should not simply let inappropriate conduct continue. Report the conduct to your manager or supervisor, or if the conduct is by the manager or supervisor, to a more senior person at [the Company].

What to do if you consider you are being harassed, discriminated against, victimised or vilified or you witness such behaviour

If you think someone is engaging in conduct in breach of this policy, either against you or against another person, you have a number of options. What you must NOT do is just ignore the wrongful behaviour. Options are as follows:

You may tell the person to stop.
This is often the simplest way of dealing with an issue as often the person concerned isn’t aware that their behaviour is humiliating, offending or intimidating someone or in breach of this policy.

You may speak to a supervisor, manager, [insert appropriate office, for example, Human Resources or a Contact Officer].
If the behaviour does not change, or you feel uncomfortable dealing with the issue directly, you may speak to a supervisor, manager, [insert appropriate office, for example, Human Resources or a Contact Officer]. They can explain options available for addressing the issue.
When speaking to a supervisor, manager, [insert appropriate office, for example, Human Resources or a Contact Officer] information and assistance can be sought on an informal basis. Alternatively, a formal complaint can be submitted.

You may make a formal complaint to [the Company].
A formal complaint may be made in writing or verbally. The complaint must be made, given or sent to either a manager or [insert appropriate office, for example, Human Resources or a Contact Officer].[Insert method, for example, Form X, via email to …, ]. See [the Company] Personal Grievance Policy for more details.
The complaint should set out who the complaint is about, what the issues complained about are, details of any information or evidence that support the complaint and what you would like done about the situation. Having received a complaint, [the Company] will determine the appropriate course of action on a case by case basis. This may involve an investigation into the issues complained about.
[delete if not relevant]
You may make an anonymous complaint to [the Company] via [insert method, for example, via a hotline, or to a named person].
As stated above, the [insert method] may be used for making a formal complaint but can also be used to report an issue anonymously should you wish to do so.

More Information

If you would like more information about this policy and your obligations under the policy you should speak to your supervisor, manager, contact officer or Human Resources [adjust or rename as necessary].

Free Anti-Discrimination Policy Template

Download this free Anti-Discrimination Policy and edit it to suit your requirements to ensure your business has a proper anti-discrimination policy in place and all employees are aligned.

By downloading this template, you agree to use it at your own risk and under your own legal advice. Nothing on this site should be considered legal advice.