Preventing workplace discrimination starts with a clear understanding of what constitutes workplace discrimination. Direct and indirect discrimination, protected grounds, the legal framework and reasonable adjustments are all areas of which employers need to be aware. The below cases illustrate how these concepts have played out in the workplace.

Gender-based wage gap

A female hospital manager brought a claim of sex discrimination against her employer on the basis of a gender-based wage gap. The manager requested to negotiate her wages with her employer on multiple occasions, because two of her male direct reports were paid more than her and classified at a higher level than their current role in the enterprise agreement.

The employer claimed that the male employees had originally been hired in a special revenue raising role which had been discontinued and, accordingly, their wages were above the enterprise agreement amount.

Initially, the Victorian Civil and Administrative Tribunal dismissed the manager’s complaint. However, in a series of appeals the Victorian Supreme Court (“Court”) found that there had been “systemic [gender] discrimination by a large organisation”.

In making this finding, the Court noted that there was an operation of structural inequality and unconscious bias in the workplace. The hospital had an overrepresentation of employees who were on above-agreement salaries and all of those employees were men. Further, the employer had ignored the manager’s repeated attempts to negotiate a higher wage despite affording the same right to her male colleagues. You can read the case here.

Refusing to hire due to “gender”

A male lawyer unsuccessfully applied for a role at a law firm and filed a discrimination claim in the Civil and Administrative Tribunal New South Wales, alleging that he was not hired due to his gender.

The candidate pointed to several matters which supported his argument: the fact that the firm was run by a female and made up of all females, the other two candidates who had been interviewed (both female) were hired and the interviewers had stated that they were supportive of family responsibilities.

The employer claimed that they chose not to hire the candidate because they had not formed a rapport during the interview. They also had concerns about the candidate relocating for the role, his career goals and whether he would pass probation.

It was found that discrimination had not occurred because it was clear that the candidate, simply put, was not the “best candidate” for the role. The fact that other female candidates had been recruited also did not prove that the male candidate had been overlooked. You can read the case here.

Asking for proof of identity

It is common practice for employers to ask for proof that a new hire is able to work in Australia lawfully by requesting a copy of a passport, birth certificate or visa documents.

In this case, the candidate filed a discrimination claim in the Queensland Human Rights Commission (“QHRC”), claiming that a recruitment agency had made unlawful requests for information under the Anti-Discrimination Act 1991 (QLD) (the “Act”) by asking unnecessary questions about protected attributes such as his “race” and “age” and to confirm his working rights in Australia.

The candidate claimed that he had been victimised during the hiring process, as providing a copy of a passport or birth certificate would clearly indicate his ethnicity and age which are protected attributes under the Act.

Although the QHRC acknowledged that the questions could amount to unlawful discrimination, it was important to consider “why” the candidate was asked to supply the information. Since the recruitment agency was legally required to verify that a candidate had the right to work in Australia before referring the candidate to an employer, it was held that no unlawful discrimination had occurred. You can read the case here.

A UK perspective

Issues of workplace discrimination are relevant to employers worldwide. A recent case from the UK involved a candidate who, during the interview process, was asked a number of questions. These questions included the language spoken at home, where she was from, whether she was Hispanic, how long she had lived in the UK and where she lived previously.

The UK Employment Tribunal (“Tribunal”) accepted that the questions were connected to race or national origin (both protected grounds in the UK). The Tribunal commented that even though some of these questions could be seen as innocuous, and reasonable questions to ask, when looking at cumulatively and in the relevant context, they could be discriminatory. The case was allowed to proceed having reasonable prospects of success. You can read the case here.