Is it legal to employ only non-smoker workers? What employee attributes are protected under law?

Pipe Smoker

An ABC News article on 15 March 2018 highlighted that employers, across a broad range of areas, are advertising specifically for non-smoker employees. While this may appear to be discriminatory, it is not unlawful employment discrimination under Australian laws.

In Australia, anti-discrimination laws protect employees (or prospective employees) against discrimination on the grounds of certain attributes. Smoking is not specifically covered by these laws, so it is not something that an employee is protected against.

What are protected attributes? When is an employer unlawfully discriminating?

Australian anti-discrimination laws differ slightly in each state, but generally, an employee is protected against discrimination on the basis of the following:

  • Age, sex or race
  • Sexual orientation, gender identity
  • Disability (physical or mental)
  • Marital status, family or carer responsibilities
  • Pregnancy or breastfeeding
  • Religion or political opinion

The above attributes protect you from being discriminated against in the recruitment process or during your employment. During employment includes discrimination in consideration of the terms offered as part of your contract, training in your job, a promotion of transfer or dismissed from your job.  If your employer threatens or takes any of the following actions against you because of the above attributes, it is considered unlawful discrimination:

  • Refuses to employ you
  • Dismisses or fires you
  • Alters your position in a disadvantageous way
  • Discriminates between you and another employee

What is not protected? When is an employer not unlawfully discriminating?

There are certain attributes that are not protected, meaning it is not necessarily unlawful to discriminate against an employee, such as in the non-smoker employees example above. If your position has been changed in a way that you feel disadvantages you, but it was due to something such as poor performance, it is not unlawful. Employers may also advertise for applicants with certain attributes, qualification or skills that are an essential requirement for the job. For example, if driving is involved in a job, then the employer can lawfully only consider people with a driver’s licence for the position.

Please feel free to contact our Litigation and Dispute Resolution team if you think you have been discriminated against at work or wish to discuss any concerns.

Further information:

When is employment discrimination lawful?
How can you protect your business from bullying, harassment and discrimination claims?

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