Discrimination in the Workplace: Who Is Responsible?

Young female secretary makes notes on a laptop while other business people are shaking hands in the background. Daylight, indoor, office.

Recently there have been a number of significant decisions regarding discrimination in the workplace, highlighting the fact that preventing discrimination in the workplace is a responsibility of every employer. Employers can be held directly responsible for discrimination or vicariously liable for the actions of their employees, if they have failed to take all reasonable steps to prevent discrimination from occurring in their workplaces.

There are differences in what actions are considered unlawful discrimination, however, employers should ensure they do not discriminate (or allow their employees to discriminate) on the basis of the following:

Race, nationality, national extraction or social original; sex, sexuality, transgender and transexuality; marital status; pregnancy; age; physical or mental disability; family responsibility, and ethnoreligious background. This is not an exhaustive list, but is a good base point for reference.

An employer can be held responsible for the action of their employees (vicariously liable) if they have not taken all reasonable steps to prevent discrimination in the workplace, and do not deal effectively with a complaint of harassment or discrimination when it is made.

An example of this can be found in a recent case involving a major rail network who was held vicariously liable for the actions of its employees in sexually harassing a female manager. The manager was subjected to having graffiti of a particularly graphic and highly offensive nature written about her in the mens toilets at the workplace. In a further incident, another employee pushed a pornographic magazine under the door of her office. The female manager filed an internal complaint, and then a further complaint with the Administrative Decisions Tribunal, citing sexual harassment and discrimination in the workplace.

The female manager was subsequently awarded $20,000 by the Administrative Decisions Tribunal due to the finding of sexual harassment and discrimination against her at work.

Employers have a responsibility to take all reasonable steps to prevent discrimination and harassment in their workplace, and to address complaints of discrimination and harassment quickly and confidentially. Some of the steps that employers should take to prevent harassment and discrimination are:

Having a comprehensive anti-discrimination policy that is committed to by all workplace participants (including managers, directors and contractors).

Having a grievance resolution procedure that is clear and concise

Providing information to your employees of where they can go to get assistance outside of your workplace if they want to (for example, the Human Rights and Equal Opportunity Commission or the Anti-Discrimination Board)

Training all employees on what is unlawful discrimination and harassment, and what behaviours are expected of them at work

Ensuring all managers are trained on how to appropriately investigate and handle complaints

Making discrimination and harassment a feature of discussion at staff meetings

Displaying posters and other materials in staff rooms that clearly state that harassment and discrimination will not be tolerated in your workplace

Regularly reviewing your workplace policies to ensure they remain current and do not indirectly discriminate

Making a commitment to Equal Employment Opportunity by including it as a common selection criteria for all positions in your workplace

This is not an exhaustive list of steps to take, for further help and information, contact a workplace law specialist or HR specialist, who can provide specific advice on discrimination in the workplace and how to avoid it.
About the Author

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