Discrimination is broadly defined as the treatment of an individual or group more favourably or less favourably than another individual or group, on the basis of a specified attribute. Behaviour prohibited by equal opportunity laws comprise four broad concepts:
Extent of Protection
The general protections proscribe certain “adverse action” being taken by one person against another for a prohibited reason. The adverse action protection primarily applies in three areas: in relation to a person’s “workplace rights”; in relation to industrial activities; and in relation to discrimination.
Protections against Harassment
Both Federal and State discrimination legislation provide for a process by which complaints of harassment are made to an administrative body which will investigate the complaint and attempt to achieve a settlement between the parties. If the matter does not resolve the complainant may seek to have the complaint heard by a tribunal or court.
Employer’s Obligation to Provide Reasonable Accommodations
Under equal opportunity legislation there is an obligation on employers to provide reasonable adjustments (or reasonable accommodation) for employees with disability. Although not expressly stated as an obligation to provide reasonable accommodations the effect of prohibition on indirect discrimination is to require employers to consider whether conditions and requirements or practices in the workplace which impact adversely on particular employees are reasonable in the circumstances.
The most common remedies are a declaration to the effect that unlawful discrimination has occurred and an award of damages to compensate the aggrieved person for the loss they have suffered as a result of the unlawful discrimination. Courts also have the power to grant injunctive relief (i.e. an order compelling or prohibiting certain conduct), order an apology, order that an employee be reinstated to their former position, order a retraction and vary the terms of an employment contract. It is unsettled whether the courts have the power to award exemplary or punitive damages that go beyond mere compensation. The present state of authority suggests that exemplary or punitive damages are not available.