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Equal Employment Opportunity (EEO) Summary

  

What is EEO?

EEO stands for Equal Employment Opportunity, and covers discrimination and associated topics such as harassment, bullying and victimisation.

EEO legislation

Most employers are subject to both Federal and State EEO legislation. Each state and territory has a separately administered tribunal and court system overseeing these laws. In addition, employees in any state or territory may utilise the Federal court and tribunal systems.
 
It is important for managers and supervisors to have some understanding of the employer’s obligations under the law in order to ensure compliance.
 
Federal and State EEO laws provide that it is unlawful to discriminate against a person on certain prohibited grounds of discrimination. Discrimination is unlawful in the area of employment, which includes recruitment during employment and termination of employment.
 
Employers with 100 or more employees are subject to extra legal requirements in relation to promoting and reporting on their practices that support equal opportunity for women in the workplace.

How is the employer accountable under EEO law? 

The law generally holds an employer responsible for discrimination or harassment that occurs in the workplace by its employees. This is called vicarious liability. If however, the employer can show that it took all reasonable steps to prevent the discrimination or harassment occurring, then the employer may not be responsible.

  

How does discrimination occur?

Discrimination occurs if an employee is treated less favourably than other employees in the same or similar circumstances on the basis of a prohibited ground of discrimination (sex, age, race, etc). This is known as direct discrimination.
 
Generally speaking, the ground of discrimination does not have to be the sole or dominant reason for the less favourable treatment of the employee — it only has to be a contributing factor.
 
Indirect discrimination is also unlawful. Indirect discrimination occurs where there is a requirement or policy that is the same for all that, on its face, appears neutral. However, it has a disproportionate impact on certain groups (such as people of a certain sex or age) and that requirement or policy is not reasonable in the circumstances.
 
An employer will be vicariously liable for unlawful discrimination or harassment engaged in by its employees, for example if a manager sexually harasses a co-worker. However, if the employer can show that it took all reasonable steps to prevent the discrimination or harassment occurring, then the employer may have a defence to vicarious liability.

  

What if someone complains of discrimination?

If an employee or job applicant lodges a complaint of discrimination or harassment with the employer, the complaint should be investigated to determine first, the factual basis of the allegation (ie whether the facts as alleged are true); and second, whether the facts constitute a breach of the relevant discrimination legislation. In some cases, the alleged discrimination may not involve a breach of legislation, but may involve a breach of an employer’s internal policies and procedures.

 
Where the employer has policies and procedures in place dealing with investigations into allegations of discrimination, those policies and procedures should generally be followed.
 
An employer should seek specific legal advice if an allegation of discrimination or harassment can be substantiated.If an employee or job applicant lodges an external complaint of discrimination (ie with the relevant EEO authority), the government agency that received the complaint will usually contact the employee and/or individual complained about to attempt to resolve the complaint by conciliation between the parties.
 
If conciliation is unsuccessful or not possible, the complainant can elect to refer the complaint to an EEO tribunal for legal resolution. If the tribunal upholds the complaint, it may award remedies against the employer.
 
Remedies include, but are not limited to, damages, financial compensation, and issuing an apology.

  

What are the general protections?

The Fair Work Act 2009 (Cth) prohibits an employer from taking 'adverse action' against an employee (and in some cases independent contractors or prospective employees) for certain reasons.
 
In summary, the general protections deal with: 
  • workplace rights;
  • industrial rights (including industrial activities and freedom of association);
  • protection from discrimination;
  • protection from unlawful termination;
  • protection from sham arrangements (relating to the engagement of independent contractors).

What is a workplace right? 

An employer is prohibited from taking adverse action against a person as a result of a person’s workplace right, the exercise or non-exercise of that right, or the person’s proposal to exercise or not exercise a workplace right in the future.
 
A person has a 'workplace right' if they: 
  • are entitled to the benefit, or have a role or responsibility under a workplace law, workplace instrument or order of an industrial body (for example, an entitlement or benefit such as personal leave);
  • are able to initiate, or participate in, a process or proceeding under a workplace law or instrument (for example, the participation in protected industrial action); or
  • are able to make a complaint under a workplace law to seek compliance with that law or an industrial instrument (for example, an application to the Fair Work Commission for the initiation of unfair dismissal proceedings, or a complaint to the Fair Work Ombudsman).

What is adverse action?  

'Adverse action' refers to action taken by an employer, employee, a contractor or an industrial association, and includes: 
  • dismissing, injuring, or altering an employee’s position, or discriminating against current employees;
  • a prospective employer’s refusal to employ a prospective employee, or discriminating on the terms and conditions on which a prospective employee is offered employment;
  • terminating or altering the position, or injuring an independent contractor, by a principal or prospective principal;
  • ceasing work or taking industrial action by an independent contractor against a person (eg a principal);
  • an employee ceasing work in the service of the employer, or undertaking industrial action (however protected action would be an exception);
  • an industrial association taking industrial action against a person or any action that prejudices a person in their employment (or prospective person’s employment).

What other protections exist under the Fair Work Act?  

Among other protections, an employer must not take adverse action against an employee: 
  • on a prohibited ground of discrimination;
  • for participating, or not participating, in industrial activity; or
  • because the employee is or is not a member of an industrial association.

What remedies are available for breaches of the general protections?  

Where a person breaches the general protections provisions of the Fair Work Act, the remedies available to the court are wide and can include injunctions, compensation, reinstatement of a person, and financial penalties of up to $6,600 for individuals and $33,000 for corporations for each breach.