Recently there have been a
number of significant decisions regarding discrimination
in the workplace, highlighting the fact that preventing discrimination at work
is a responsibility of every employer. Employers can be held directly
responsible for discrmination, or
vicariously liable for the actions of their employees, if they have failed to
take all reasonable steps to prevent discrimination from occurring in their
workplaces under the Australian workplace law.
From State to State under there
are a differences in what actions are considered unlawful discrimination, however, employers should ensure they do not
discriminate (or allow their employees to discriminate) on the basis of the
following:
- race, nationality, national extraction or social original;
- sex, sexuality, transgender and transexuality;
- marital status;
- pregnancy;
- age;
- physical or mental disability;
- family responsibility, and
- ethno-religious background.
Case Summary: Vicarious Liability
An employer can be held
responsible for the action of their employees (vicariously liable) if they have
not taken all reasonable steps to prevent discrimination and harassment in
their workplace, and do not deal effectively with a complaint of harassment or
discrimination when it is made.
Recently a major rail
network was held vicariously liable for the actions of its employees in
sexually harassing a female manager. The manager was subjected to having
graffiti of a “particularly graphic and highly offensive nature” written about
her in the men’s toilets at the workplace. In a further incident, another
employee pushed a pornographic magazine under the door of her office.
The female manager filed an
internal complaint, and then a further complaint with the Administrative
Decisions Tribunal, citing sexual harassment and discrimination at work.
The female manager was
subsequently awarded $20,000 by the Administrative Decisions Tribunal due to
the finding of sexual harassment and discrimination against her at work.
Case Summary: Personal Persistance as Harassment &Employee Liability
A recent decision of the
Federal Court has found a female university student harassed their university
tutor when she persisted in making advances to him after he had refuted her.
The university tutor filed the complaint of harassment about the student in
2002 after she had described him as having “nice eyes” and asking him out to
coffee and the movies.
The tutor emailed the
student stating that he did not believe that going to the movies together was a
good idea, and requesting that she desist from making advance to him.
The student responded to the
email, including a threat to “make life difficult” for the tutor. Her email
response was considered to be aggressive by the Court.
On appeal from the Federal
Magistrates Court, the Federal Court found that “conduct in the nature of
persistent personal invitations has, in some cases, and in conjunction with
other acts, been held to constitute sexual harassment”. Where the tutor had
clearly rejected the advances of the student, but she persisted, it consistuted
unwelcome and unsolicited conduct of a sexual nature.
Are you Taking All Reasonable Steps to Prevent
Discrimination in Your Workplace?
Employers have a
responsibility to take all reasonable steps to prevent discrimination and harassment in their workplace, and to address
complaints of discrimination and harassment quickly and confidentially.
Some of the steps that
employers should take to prevent harassment and discrimination are:
- Having a comprehensive anti-discrimination policy that is committed to by all workplace participants (including managers, directors and contractors)
- Having a grievance resolution procedure that is clear and concise
- Providing information to your employees of where they can go to get assistance outside of your workplace if they want to (for example, the Human Rights and Equal Opportunity Commission or the Anti-Discrimination Board)
- Training all employees on what is unlawful discrimination and harassment, and what behaviours are expected of them at work
- Ensuring all managers are trained on how to appropriately investigate and handle complaints
- Making discrimination and harassment a feature of discussion at staff meetings
- Displaying posters and other materials in staff rooms that clearly state that harassment and discrimination will not be tolerated in your workplace
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