Dear MD,

I am providing you with some advice regarding the effectiveness of the law in addressing discrimination issues, as per your request.

Regulation of discrimination in the workplace has taken effect in Australia for more than 40 years. This commenced with a state legislation, which was then followed by the Racial Discrimination Act 1975 (Cth). Over the years, the anti-discrimination laws have been extended to include additional groups of people.  The anti-discrimination laws have evolved with time where the focus is not only on the simple conception of discrimination. There is now the inclusion of more complex notions that accommodate and acknowledge perceived differences to enable substantive equality. The Fair Work Act 2009’s anti-discrimination provisions show that discrimination is being recognized as an industrial issue. It provides employees with another avenue to pursue claims resonating with anti-discrimination (Rees, et al., 2014, p. 112). Favorable laws on discrimination would be helpful for employees that are seeking a redress, and could work in reducing acts of discrimination and eliminate the prejudice that underpins these discriminations. However, these laws cannot solve these problems entirely due to some technicalities. This essay will show how relevant laws would work in reducing levels of discrimination in the workplace. This will be achieved by showing the objectives behind the anti-discrimination legislations. The essay will continue further to show why it is not possible to solve this problem entirely.

Anti-discrimination legislative is brought into existence with the objective of making the lives of employees favorable in the workplace. This is in light of the nature of employers that exist out there. There are those employers that are likely to act in a way that only fulfills their interests at the expense of employees. This is where they act in favor of some employees while they treat others in undesirable ways. Anti-discrimination legislations are meant to ensure that all employees are treated with equality regardless of who they are, or what the employers think about them. In Australia, anti-discrimination legislative has been coined to ensure that all employees are protected based on the treatment that they receive from the employers. It is unlawful to discriminate employees based on some protected attributes such as disability, age, sex, race, gender identity, sexual orientation and intersex status (Rees, et al., 2014, p. 97). There are some legislations that have been used to ensure that the required regulations are followed to the letter. This includes the Age Discrimination Act 2004 (Cth), Racial Discrimination Act 1975 (Cth), Disability Discrimination Act 1992 (Cth) and Sex Discrimination Act 1984 (Cth).  These Acts tend to cover various areas where discrimination is likely to occur. The legislations have helped several employees to gain fair treatment in their areas of employment. It is an indication that the anti-discrimination legislations are likely to reduce acts of discrimination on various grounds.

Anti-discrimination legislation has various statutory provisions. This helps in the enactment of frameworks that help to identify acts of unlawful discrimination. There ought to be an act or an omission for discrimination to be regarded as being unlawful.  The act or omission must be based on the attributes outlined by the legislation such as disability, sex or race. It also has to fall within an area of a given activity outlined in the legislation such as employment. The harm or omission must have resulted in some less favorable treatment or harm, be it indirect or direct discrimination (Rees, et al., 2014, p. 106). These aspects show that there are frameworks regulating discrimination prospects, hence making it quite easy to substantiate when employees are being discriminated, and application of relevant remedies becomes feasible.

In Australia, grounds set in the legislation regarding discrimination tend to vary from one jurisdiction to another. They include sexuality, race, pregnancy, sex, parental status, age, marital status, religion, disability, trade union activity and political belief. In case an individual is discriminated against based on the basis of grounds not included in the legislation, the victim does not have a remedy under the anti-discrimination law. Most of the grounds that are listed in the legislation reflect the beliefs of the community. A good example is where discrimination between a woman and a man in the workplace should be permitted on the foundation of skills, experience or qualifications, but not their sex. The judgment involved here is that sex does not bear a relevant impact on the abilities that people have to perform their work. This is to say that the grounds prescribed by the legislation make it possible to overt acts of discrimination by employees at the workplace.

Over the years, there have been several judicial precedents on issues concerning anti-discrimination.  This is based on the ruling of various case laws. A good example is Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82. The plaintiff brought a claim against Oracle alleging that they had breached section 28B (2) of Sex Discrimination Act 1984 (Cth). The Plaintiff asserted that she received “constant barrage of sexual harassment” for six months. Oracle was found liable, and the plaintiff was awarded $18,000 as general damages, but a claim for economic loss was rejected. The plaintiff appealed the decision, and she was awarded a significant increase of $130,000 in damages. This case law is a good indication of how the implementation of the anti-discrimination law would work to help employees to get favorable treatment in the workplace since the organizations would fear the negative consequences likely to accrue.

Despite the effectiveness that anti-discrimination laws would bring to employees at the workplace, it would not solve the problems encountered by disadvantaged groups entirely. This is due to various defenses, exceptions and exemptions that permit specific discrimination cases (Sappideen et al., 2016, p.633). If for instance, a job description requires an individual to have the capacity of working overnight business trips or full-time hours, an organization is rightful in denying employment to those that feel they cannot fulfill this capacity. However, the rule ought to be reasonable so that it can survive a challenge for indirect discrimination (Sappideen et al., 2016, p.624).

Genuine occupational qualification is also available in the Sex Discrimination Act 1984 (Cth). The exception allows employers to use sex as a basis of recruiting employees. This is for “a position in relation to which it is a genuine occupational qualification to be a person of” a specific sex (Sappideen et al., 2016, p.633).  There is another type of exemption that is all about “inherent requirement” of a certain position. This form of defense is available federally with regards to age discrimination and disability. An employer is permitted to exclude applications from people that cannot perform the specified requirements even when they cannot do this due to their age or disability. However, under the Disability Discrimination Act 1992 (Cth), it is not available absolutely but requires the employer to conduct an assessment of whether the individual could perform the inherent requirements if they made reasonable adjustments (Sappideen et al, 2016, p.633).

Discrimination is also acceptable if it is executed so that the employer complies with another law.

In conclusion, favorable laws on discrimination would be helpful for employees that are seeking a redress, and could work in reducing acts of discrimination and eliminate the prejudice that underpins these discriminations. However, these laws cannot solve these problems entirely due to some technicalities. Anti-discrimination legislations ensure that every employee is treated with equality while striving for various opportunities in the workplace. There are several statutory provisions in various legislations that entail frameworks preventing employees from unlawful discrimination. The law protects individuals from being discriminated based on their include sexuality, race, pregnancy, sex, parental status, age, marital status, religion, disability, trade union activity and political belief. Despite the effectiveness that anti-discrimination laws would bring to employees at the workplace, it would not solve the problems encountered by disadvantaged groups entirely. This is due to the exceptions, defenses and exemptions that allow specific discrimination cases.

 Bibliography

Statutes

Age Discrimination Act 2004 (Cth)

Disability Discrimination Act 1992 (Cth)

Fair Work Act 2009 (Cth)

Racial Discrimination Act 1975 (Cth)

Sex Discrimination Act 1984 (Cth)

Cases

Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82

Books

Rees, N., Rice, S., & Allen, D. (2014). Australian anti-discrimination law (2nd ed.). Federation    Press.

Sappideen, C., O’Grady, P., Riley, J., Smith, B. (2016). Macken’s Law of Employment – 8th           Edition. Australia: Thomson Reuters.

 
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