Workplace Discrimination

What is discrimination? 

Discrimination is treating a person less favourably than another person because of an attribute, characteristic or circumstance they have (or are assumed to have), where a person without that attribute would not be treated the same way in similar circumstances. 

What are attributes of discrimination in the workplace?

Under Section 351 of the Fair Work Act 2009 (Cth) (‘FWA’), the protected attributes are: 

• Race, colour, ethnicity or national extraction; 

• Age; 

• Sex, sexual orientation, gender identity, or intersex status; 

• Marital status or relationship status; 

• Family or carer’s responsibilities; 

• Pregnancy (including potential pregnancy) and breastfeeding; 

• Religion; 

• Political opinion; 

• Social origin; 

• Physical or mental disability; and 

• Experiencing family and domestic violence. 

Note: this list has expanded since this factsheet was last updated. Breastfeeding, gender identity, intersex status, and experiencing family and domestic violence were all added as protected attributes following the Respect at Work reforms and subsequent amendments, and now sit alongside the longer-standing attributes such as race, sex and disability.

What is discrimination in the workplace?

Discrimination in the workplace occurs when your employer (or, in some cases, a colleague) takes adverse action against you because of one of the attributes listed above. Taking adverse action for a discriminatory reason is unlawful. 

Examples of adverse action are: 

• dismissing an employee; 

• refusing to hire or promote an employee; 

• injuring an employee in their employment (for example, denying them a legal entitlement such as pay or leave); 

• altering a job description or role to the employee’s disadvantage; and 

• offering unfair terms and conditions compared to other employees. 

Discrimination also occurs when: 

• employers or employees make offensive comments about another worker’s attributes; or 

• an employee is made to feel uncomfortable or unsafe in the workplace because of one of their attributes or circumstances — including through a pattern of comments or conduct that creates a hostile work environment. 

Do employers have to proactively prevent discrimination?

Yes — at least in relation to sex-based conduct. Since 12 December 2023, every Australian employer has had a positive duty under section 47C of the Sex Discrimination Act 1984 (Cth) to take reasonable and proportionate measures to proactively eliminate, as far as possible: 

• sexual harassment and sex-based harassment connected to work; 

• conduct that creates a workplace environment that is hostile on the ground of sex; 

• sex discrimination; and 

• victimisation of anyone who makes or supports a related complaint. 

This is a shift from the old model, where an employer could largely wait until a complaint was made. The Australian Human Rights Commission (AHRC) now has the power to assess and enforce compliance with this duty, and can conduct inquiries into an employer’s workplace practices, culture and policies. 

What actions do not count as discrimination?

There are some circumstances in a workplace that are not treated as discrimination. For example, if an employee in a role were making several mistakes at work and had their duties changed as a result, this is not unlawful discrimination — because the decision was based on their work performance, not a protected attribute. 

Am I protected from discrimination at work?

All employees are protected from being discriminated against at work. This includes if your employment is: 

• Full-time; 

• Part-time; 

• Casual; 

• Only for a specific task; 

• An apprenticeship or traineeship; or 

• Probationary. 

Protections also extend to prospective employees during recruitment, and (for general protections under the FWA) to independent contractors in some circumstances. 

Does NSW have its own discrimination laws?

Yes. In addition to the federal FWA and Sex Discrimination Act, NSW has its own Anti-Discrimination Act 1977 (NSW) (‘ADA’), administered by Anti-Discrimination NSW. The ADA covers similar (and in some respects different) grounds to the federal Acts, including race, sex, transgender status, marital or domestic status, disability, carer’s responsibilities, homosexuality, and age, and also makes vilification (public conduct inciting hatred) unlawful on several of these grounds. You can generally choose to pursue a discrimination complaint through either the AHRC (federal) or Anti-Discrimination NSW (state) — but not both for the same complaint — so it is worth getting advice on which pathway suits your situation. 

Also new: from 1 July 2025, transgender and gender diverse people can update their sex descriptor on NSW birth records without surgery, following the Equality Legislation Amendment (LGBTIQA+) Act 2024 (NSW). 

What can I do if I have been discriminated against at work?

There are multiple courses of action you can take depending on your circumstances. 

• If possible, the first course of action is to notify your employer or HR manager of the discrimination and what actions you would like them to take. 

• You may also submit an online enquiry to the Fair Work Ombudsman. 

• Contact your Community Legal Centre to seek advice from an employment solicitor regarding what you should do in your circumstances. 

• Contact the Australian Human Rights Commission on 1300 369 711 to make a federal complaint (covering the Sex Discrimination Act, Disability Discrimination Act, Racial Discrimination Act and Age Discrimination Act). 

• Contact Anti-Discrimination NSW on 1800 670 812 (free call) to make a state-based complaint under the ADA — note that complaints must generally be lodged within 12 months of the discrimination occurring. 

• If you have been dismissed for a discriminatory reason, you may lodge a general protections application with the Fair Work Commission. You have 21 days from the date your dismissal took effect to lodge your application, and extensions are only granted in exceptional circumstances. 

• If you have experienced discrimination that did not involve dismissal (for example, being denied a promotion or having your role altered), you can still bring a general protections claim, but the time limit is much longer — 6 years from the date of the conduct. 

It is always best to get legal advice early to confirm whether you have been discriminated against and to identify the most appropriate pathway, since you generally cannot pursue overlapping complaints (for example, the AHRC and Anti-Discrimination NSW) for the same conduct at the same time.

Where can I get help?

If you feel you are experiencing concerns regarding discrimination in the workplace, solicitors at Marrickville Legal Centre can help you identify what you should do, explain the differences between the federal and NSW complaint pathways, and help you work out your desired outcome.