For employers

Vicarious liability

Are you doing everything you can to prevent discrimination and harassment from happening in your business?

Whether it’s in the way you or your staff deal with the public or how you recruit or select staff, you have a legal obligation to take “all reasonable steps” to stop this  conduct from taking place. This legal obligation is called vicarious liability.

Lawful and unlawful discrimination

Sometimes there are special circumstances where discrimination in the workplace is ok.

Special measures

You can introduce a special program or service to help staff overcome past  disadvantages and compete on an equal basis. Special measures are allowed to  target people due to a special attribute, such as race, sex and age.

Example: A garage needed to employ a mechanic. As Aboriginal unemployment was high in that area, the garage owner decided to specifically advertise for an Aboriginal person to fill the position. This was not unlawful discrimination because it was intended to benefit a disadvantaged group of people.

Needs of the job

You can  discriminate against someone if they don’t have the specific skill, ability or qualification genuinely needed for the job.

Example: Jack had an  injury to his knee which made it hard for him to move freely. He was also overweight and unfit. He applied for a job as a roofer. He didn’t get the job  and he complained that it was due to disability discrimination. However, his complaint was dismissed by the Commission as there was an inherent need for the successful applicant to have a high level of fitness and mobility due to safety issues and the physical demands of the job.

Eliminating sexual harassment

Sexual harassment is unacceptable in any workplace. But it also has costly  consequences for the employer, including poor productivity, more sick days,  compromised safety, resignations and even financial costs if a complaint ends  up in court.

As an employer, you can help eliminate sexual harassment in your workplace by educating your staff.

In fact, you have a legal responsibility to ensure you have taken all adequate and reasonable steps to prevent unlawful discrimination and harassment.

Relevancy of a criminal history check

You may think it’s a good idea to check the criminal record when you are hiring new staff or considering an existing staff member for a particular duty. But discriminating against someone on the basis of an “irrelevant criminal record” is against the  law.

The exception to the rule is when the work involves the care, instruction or supervision of vulnerable people, and the discrimination is necessary to protect them.

To make sure you’re criminal history check is lawful, ask yourself the following questions:

• is it lawful to exclude people from employment on the basis of their criminal history?
• is a person’s criminal history strictly relevant to the duties of the position on offer?
• have those subjected to the check been treated fairly and in a non-discriminatory manner?

For employers who wish to conduct criminal history checks, our staff are available to give advice at any stage of the process. Just phone us on free call 1800 813 846.

Training

The Anti-Discrimination Commission offers training on a variety of subjects including one designed to assist Managers and Supervisors understand their role in preventing discrimination in the workplace. More information including how to register for our training can be found here