When is employment discrimination lawful?

It is well known that employment is an important factor for individual welfare and economic security. However, it is also well known that people with disabilities, older Australians, people that come from a diverse cultural or ethnic background find it more difficult to obtain jobs.

Employment discrimination can be defined as treating an employee or a group of employees less favourably than another employee or group in the workplace who are in the same or similar circumstances. However, the legislation provides certain exceptions when discriminatory conduct may be lawful. These would be the cases where an employer could have a strong defence in relation to discrimination claims made by a prospective or existing employee. A few examples of situation when an employer may be able to claim that discriminatory actions are justified are as follows:

  • The employee cannot perform the inherent requirements of the role
  • The employer’s ability (or inability) to make adjustments to offer or maintain employment which may result in an unjustifiable hardship for the employer, then it may be lawful for the employer to discriminate against a person with a disability
  • The employee has a condition or a disease where discriminating against that person would be seen as ‘reasonable’ as it would be a matter of protection of public health and safety
  • Court orders or compliance with certain legislation that may impose that an employee cannot work in certain environments (for example working with minors where the employee had a conviction relating to indecent assaults against children)
  • Discriminatory provisions based on citizenship status.

If you need further advice regarding lawful discrimination in the workplace, please contact Anca Costin:

e:  acostin@elringtons.com.au | p: 02 6206 1300.