Protection from discrimination at work

Under the Fair Work Act, an employer can't take adverse action against an employee or a prospective employee for discriminatory reasons.

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Protected attributes

Employees and prospective employees are protected from adverse action because of protected attributes.

The protected attributes under the Fair Work Act are:

  • race
  • colour
  • sex
  • sexual orientation
  • age
  • physical or mental disability
  • marital status
  • family or carer's responsibilities
  • pregnancy
  • religion
  • political opinion
  • national extraction
  • social origin
  • breastfeeding
  • gender identity
  • intersex status
  • experiencing family and domestic violence.

Adverse action

Adverse action includes doing, threatening or organising any of the following:

  • firing an employee
  • injuring the employee in their employment (for example, not giving an employee their legal entitlements, such as pay or leave)
  • changing an employee's job to their disadvantage
  • treating an employee differently than others (for example, treating someone differently based on their sex or gender identity)
  • not hiring someone
  • offering a potential employee different and unfair terms and conditions for the job compared to other employees.

Examples of discrimination at work

Discrimination can happen to:

  • someone applying for a job as an employee
  • a new employee who hasn't started work
  • an employee at any time during employment.

Example: Older workers and discrimination at work

Dimitri is an experienced barista with excellent references. He applies for a vacancy at a local coffee shop. During the job interview, the manager asks him how old he is. Dimitri tells the manager he is 57 years old.

The next day the manager calls Dimitri to tell him that he didn’t get the job because the coffee shop wants a ‘younger, fresher look’ for their baristas. They have hired a 17-year-old who is less qualified for the job.

This is discrimination. Dimitri is treated differently from other job applicants because of his age.

Example: Pregnancy and discrimination at work

Sally is employed as an account manager at an advertising firm. The manager at the firm tells all the account managers that they can attend a training course. Sally is pregnant and tells her colleagues and the manager the good news. The manager asks Sally to come to a meeting to discuss the training. At the meeting, he tells her that he has changed his mind and that she can’t attend the training because she is pregnant.

This is discrimination. Sally is treated differently from her colleagues because she is pregnant.

Example: Family and domestic violence and discrimination

Isabella is interviewing for a job at a real estate company.

During the interview, Isabella tells the manager, Caitlyn, that she is looking for work because she needs to support herself as she’s experiencing family and domestic violence and has recently left her ex-partner.

After Isabella leaves the interview, Caitlyn decides against hiring Isabella because of what Isabella disclosed. She thinks Isabella’s situation would cause problems at the real estate company and that Isabella wouldn’t be a reliable employee.

This is discrimination. Caitlyn is taking adverse action against Isabella by deciding not to hire her because Isabella is experiencing family and domestic violence.

Action that isn't discrimination

Adverse action isn't always discrimination, even though it might seem to be. There can be lawful reasons for adverse action that have nothing to do with someone's personal characteristics.

It's not discrimination if the actions:

  • are allowed under state, territory or federal anti-discrimination laws
  • are taken against an employee of a religious institution to avoid harming the organisation's religious beliefs
  • do not relate to one or more of the protected attributes (visit our Bullying in the workplace page for more information), or
  • relate to the necessary requirements of the job.

Example: When an adverse action isn’t discrimination

Peter has a physical disability and relies on a wheelchair. He works as a marketing employee. On his last project, he made some mistakes. Peter's manager tells him that he’ll need to do some training to develop his skills. Peter continues to make mistakes after he has done the training. As a result, Peter's employer changes his duties to more general administration tasks while he does more training.

In this example, Peter hasn't been discriminated against. His job has been changed because of his poor performance and not because of his physical disability.

If the changes to Peter's job happened because of his disability it would most likely be discrimination.

Example: Necessary requirements of the job

Lisa is 17 years old and recently applied for a job working in a bar serving alcohol. However, the state's liquor laws don't allow people under 18 years old to serve alcohol.

Being able to legally serve alcohol is a necessary requirement of the job.

The company wrote to Lisa saying that because she was under 18 and couldn't legally serve alcohol, she didn't meet the requirements of the job.

It's unlikely that the company has unlawfully discriminated against Lisa because of her age. The reason why it refused to employ her was that she wasn't able to legally serve alcohol and this is a necessary requirement of this job.

Positive duty under the Sex Discrimination Act

Under the Sex Discrimination Act, organisations have a positive duty to eliminate, as far as possible, the following unlawful behaviour from occurring:

  • discrimination on the ground of sex in a work context
  • sexual harassment in connection with work
  • sex-based harassment in connection with work
  • conduct creating a workplace environment that is hostile on the ground of sex
  • related acts of victimisation.

The Australian Human Rights Commission has a range of practical information and resources to help organisations meet their positive duty obligations. This includes animations that explain the positive duty. Visit their website at The positive duty in the Sex Discrimination Act.

Source reference: Fair Work Act 2009 s.351 and Sex Discrimination Act s47B-C

Tools and resources

Related information

Need help resolving discrimination issues?

For employees:

If you've lost your job, contact the Fair Work Commission (the Commission) first if you think you were sacked because of:

  • discrimination
  • a reason that is harsh, unjust or unreasonable
  • another protected right.

You have 21 days starting from the day after you were dismissed to lodge an application with the Commission. Check the information at the Commission website to find out if you can apply for:

For other discrimination issues:

  • consider whether the actions taken were unlawful discrimination
  • see our Fixing a workplace problem section for practical advice on:
    • talking to your employer about fixing the problem
    • getting help from us if you can't resolve it
  • contact your state or territory anti-discrimination body, which can consider and investigate breaches of state or territory anti-discrimination laws in workplaces
  • contact the Australian Human Rights Commission (AHRC), which accepts complaints about workplace discrimination covered by federal discrimination laws, including sex, disability, race and age discrimination. The AHRC also has specific complaint handling functions for complaints about discrimination on the basis of irrelevant criminal record and religious belief discrimination in employment. The AHRC uses conciliation between parties to reach a resolution.

For employers:

Take discrimination issues seriously. Know what discrimination is and take steps to prevent it in your workplace. 

We have resources to help you:

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