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This article was written by Sally Crosswell

Sally Crosswell has a Bachelor of Laws (Hons), a Bachelor of Communication and a Master of International and Community Development. She also completed a Graduate Diploma of Legal Practice at the College of Law. A former journalist, Sally has a keen interest in human rights law.

Workplace Discrimination (NSW)


Discrimination is mistreating someone because of a characteristic they have or are believed to have. Discrimination in the workplace is illegal in New South Wales if it is made on the basis of disability, sex, race, age, marital or domestic status, homosexuality, transgender status or carer’s responsibilities.

It is unlawful for an employer to discriminate in recruiting or in the terms of employment based on one of those characteristics. An employer also must not deny or limit access to promotion, transfer or training, or sack an employee based on the characteristic.

The law applies in the areas of work, education, registered clubs, the provision of goods and services, and the provision of accommodation. It is covered by the Anti-Discrimination Act 1977. This article outlines discrimination in the workplace.

Disability

Disability under the Act means a current, assumed, past or future disability. It is not considered unlawful discrimination if the employee is already employed and cannot do the job successfully due to their disability, or they require services or facilities to do the job and providing those would cause unjustifiable hardship for an employer.

The law does not apply to employment in a private household, a business with fewer than 5 employees, or a private educational facility.

Discrimination on the basis of a disability may not be unlawful if:

  • the disability is an infection disease and discrimination is needed to protect the public from it;
  • the person is addicted to prohibited drugs;
  • it relates to terms or conditions for superannuation or policies for insurance;
  • it excludes someone from sport because they cannot reasonably perform the actions needed, or the selection process is reasonable and relative, or the activity is conducted only for people who have a particular disability.

Sex

The law does not apply to employment in a private household, a business with fewer than 5 employees, or a private educational facility.

Rights or privileges afforded to a woman in connection with pregnancy, childbirth or breastfeeding is not considered unlawful discrimination. Terms or conditions for superannuation, policies for insurance, or exclusion rules for sport which discriminate on the basis of sex may also not be considered unlawful.

Race

Exceptions can be made when a position requires a person of a particular race for authenticity, such as in entertainment, photography art or hospitality; or where welfare services for a particular race can most effectively be provided by a person of the same race.

The law does not apply to employment in a private household.

Age

Exceptions can be made where:

  • a position requires a person of a particular age for authenticity, such as in entertainment;
  • being a particular age is a genuine occupational qualification under regulations;
  • welfare services for a particular age group can most effectively be provided by a person of the same age group.

Discrimination on the basis of age may not be unlawful where it:

  • relates to terms or conditions for superannuation, policies for insurance, or credit applications;
  • involves the welfare of children;
  • involves the provision of facilities, services or opportunities to meet special needs or promote equal or improved access to facilities, services or opportunities;
  • relates to driving ability and licence conditions for road safety;
  • relates to exclusion from sport.

The law does not apply to employment in a private household.

Marital or domestic status

The law does not apply to employment in a private household, a business with fewer than 5 employees, or a private educational facility. Terms or conditions for superannuation which discriminate on the basis of marital or domestic status may not be considered unlawful.

Transgender status and homosexuality

The law does not apply to employment in a private household, a business with fewer than 5 employees, or a private educational facility. Terms or conditions for superannuation or exclusion rules for sport which discriminate on the basis of transgender status or homosexuality are not unlawful.

Carer’s responsibilities

“Responsibilities as a carer” under the Act means current, assumed, past or future responsibilities. It is not considered unlawful discrimination if the employee is already employed and cannot do the job successfully due to their responsibilities, or they require services or facilities to do the job and providing those would cause unjustifiable hardship for an employer.

Complaints

The Anti-Discrimination Board of NSW handles complaints by helping parties to resolve the matter if possible. If conciliation is not successful, the matter can be referred to the NSW Civil and Administrative Tribunal, which has an Administrative and Equal Opportunity Division that deals with discrimination complaints.

For advice or representation in any legal matter, please contact Armstrong Legal.

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