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What does equal opportunity in the workplace mean?
Equal opportunity in the workplace plays a key part in protecting human rights. Find out what it is, why it matters and how it affects you.
As a graduate in Australia, there are various legal frameworks designed to ensure that you can pursue your career goals without being unfairly disadvantaged on account of traits such as your race and ethnicity, gender, religious affiliation, age, sexual orientation, socioeconomic status, or degree of able-bodiedness. Broadly speaking, these laws are oriented around the concept of ‘equal opportunity’, which holds that employees and jobseekers are not to be penalised for any inappropriate reasons.
What is equal opportunity?
As we will see in the next section, the idea of equal opportunity is enshrined by different state and federal laws that vary slightly in their language. However, the basic idea remains the same and is well-expressed in the following definition provided by the state government of Victoria:
Equal opportunity means that every person can participate freely and equally in areas of public life such as in the workplace, in education, or in accessing goods and services. Discrimination is treating, or proposing to treat, someone unfavourably or bullying them because of a personal characteristic protected by law. Equal opportunity law aims to promote everyone's right to equal opportunities; eliminate, as far as possible, discrimination and sexual harassment; and provide redress for people whose rights have been breached.
The Federal Government’s online guide for the business community (business.gov.au) stipulates that it is unlawful for employees or jobseekers to be disadvantaged as a result of any of the following:
- sexual preference
- physical or mental disability
- marital status
- family or carer’s responsibilities
- political opinion
- national extraction
- social origin.
Equal opportunity employment legislation in Australia
At the national level, equal opportunity employment falls within the domain of the Australian Human Rights Commission, which investigates complaints related to the following acts of federal legislation:
Age Discrimination Act 2004
This Act ensures that nobody is treated less favourably on the basis of their age not only in the workplace, but also with regards to education, accommodation and the provision of goods and services.
Australian Human Rights Commission Act 1986
The broadest of the federal laws, this Act gives the Australian Human Rights Commission the authority to investigate discrimination in employment or occupation as it relates to race, colour, sex, religion, political opinion, national extraction, social origin, age, medical record, criminal record, marital or relationship status, impairment, mental, intellectual or psychiatric disability, physical disability, nationality, sexual orientation, and trade union activity.
Disability Discrimination Act 1992
This 1992 Act followed the first of five key UN conferences during the 1990s and standardised the various laws created by Australia’s state legislatures, allowing it to become, in 2007 a principal signatory to the United Nations Convention on the Rights of Persons with a Disability.
The Disability Discrimination Act prohibits discrimination on the basis of physical, intellectual, psychiatric, sensory, neurological or learning disability, physical disfigurement, disorder, illness or disease that affects thought processes, perception of reality, emotions or judgement, or results in disturbed behaviour, and presence in body of organisms causing or capable of causing disease or illness (e.g. HIV virus).
Racial Discrimination Act 1975
This law prohibits discrimination on the basis of race, colour, descent or national or ethnic origin and in some circumstances, immigrant status. Section 18C contains the controversial language that prohibits “racial hatred, defined as a public act/s likely to offend, insult, humiliate or intimidate on the basis of race, is also prohibited under this Act unless an exemption applies.”
Sex Discrimination Act 1984
The Sex Discrimination Act makes it unlawful to discriminate in employment on the basis of sex, marital or relationship status, pregnancy or potential pregnancy, breastfeeding, family responsibilities, sexual orientation, gender identity, and intersex status. Sexual harassment is also prohibited under this Act.
The legislation’s passage was spearheaded by the politician Susan Ryan, who introduced it in 1983, when she was one of only 19 women in federal parliament (which then had a total of 189 members). One of the Act’s many consequences was the 1985 integration of the Women's Royal Australian Naval Service into the Royal Australian Navy.
Each state and territory has its own legislation, though they broadly overlap in their application and language (this is due, in large part, to the standardising effect of the federal laws described above). To wit, the various state laws prohibit discrimination on the basis of sex, relationship status, pregnancy, parental status, breastfeeding, race, age, impairment, religious belief or religious activity, political belief or activity, trade union activity, lawful sexual activity, gender identity, sexuality, family responsibilities, and association with or in relation to a person who has any of the above attributes. The relevant state laws include:
- Australian Capital Territory - Discrimination Act 1991 (ACT
- New South Wales - Anti-Discrimination Act 1977 (NSW)
- Northern Territory - Anti-Discrimination Act 1996 (NT)
- Queensland - Anti-Discrimination Act 1991 (QLD)
- South Australia - Equal Opportunity Act 1984 (SA)
- Tasmania - Anti-Discrimination Act 1998 (TAS)
- Victoria - Equal Opportunity Act 2010 (VIC)
- Western Australia - Equal Opportunity Act 1984 (WA)
The benefits of equal employment opportunity laws
Equal employment opportunity (EEO) is advantageous for both individuals and the organisations for which they work. Individuals benefit from clarity when it comes to the establishment of a baseline for acceptable behaviour. This is particularly important in diverse workplaces, where demonstrating appropriate regard for the different lifestyles, values, and personal choices of one’s colleagues is a vital way to maintain a fair environment for all. EEO laws help employees feel that they are treated fairly and equally, which, in turn, boosts productivity, performance, and satisfaction. Finally, they broaden an individual’s employment options by eliminating the possibility that they might be unwelcome to to apply for jobs at certain organisations.
The chief benefit enjoyed by organisations that implement equal opportunity laws is the creation of a more diverse workforce. Various studies have shown that diverse workplaces increase staff retention and satisfaction, and even boost revenue. For more on this, see our article on the benefits of diversity.
How EEO laws apply in the workplace
You might think that equal employment opportunity laws have little to do with you: especially if you’re young, able-bodied, male, and not a member of an ethnic minority group. However, you may be surprised by how far-reaching the EEO laws are in practice: in addition to promoting outcomes such as gender equality and cultural diversity, they cover topics such as jewellery in the workplace, dress codes, tattoos, gender identity, religious holidays, and more.
To help businesses and employees understand exactly how EEO laws apply to Australian businesses, the Australian Human Rights Commission (AHRC) has written a guide to workplace discrimination, harassment, and bullying. We recommending reading it in full, but here we will draw attention to a particularly important point:
Employers should also be proactive in addressing hostile behaviour that may be embedded in the workplace culture. Examples of a potentially hostile working environment are where racially or sexually crude conversations, innuendo or offensive jokes are part of the accepted culture. An employee can complain about such conduct as harassment even if the conduct in question was not specifically targeted at him or her.
The AHRC also recommends ten steps that employers can take to create a fair and productive workplace. They include implementing a discrimination and harassment policy, establishing a process for responding to internal complaints, and ensuring that workplaces are accessible to employees with a disability.
Your rights during the recruitment process
Applications and job advertisements
Under Australian anti-discrimination laws, employers are responsible for ensuring that their existing staff are aware of their legal obligations when recruiting new employees. This is also true when a business retains the services of a recruitment agent. In both cases, it is an offence for a candidate to be subjected to discrimination based on on age, sex, race, disability, or any other characteristic protected under state or federal laws.
Note that anti-discrimination laws apply at all stages of the recruitment process, including the creation of a job description, the design of the application process, and the advertisement of the available position. For example, it is generally an offence for a job description or advertisement to refer to age, race, marital status, potential pregnancy, sex, and so on. Hence, an an advertisement that seeks a “single, fun-loving person who is free to work nights” is both creepy and illegal.
(There are some limited exemptions to these rules, which are elaborated on the AHRC website. For instance, the Aboriginal Family Violence Prevention and Legal Service Victoria received an exemption under the Sex Discrimination Act 1984 because it wished to recruit women into certain roles that involved working closely with victims of sexual violence.)
Interviews and tests
If you are asked to attend a job interview, you have the right to expect that questions will relate to the essential and desirable criteria described in the job advertised. Such questions might cover things such as your relevant work experience, travel requirements, and ability to handle any necessary physical activities. It is generally illegal to ask questions related to mental health, marital status, family planning (e.g. whether a female candidate plans to have children), previous workers’ compensation claims, and so on. The interview should take place at a venue that is accessible to people with disabilities.
While it may be necessary in some contexts for employers to conduct medical or psychological/psychometric tests to determine a candidate’s ability to meet the requirements of a job, employers have an obligation to ensure that the information they gather is not used to support discriminatory practices.
You can learn more about your rights during the recruitment process by referring to the helpful factsheets on the AHRC website.
What about people with a criminal record?
In certain situations, employers may require candidates to undergo a police check that will reveal whether or not the candidate possesses a criminal record. As a general rule, this is only permissible if the presence of relevant criminal convictions would preclude a candidate from meeting the ‘inherent requirements’ of a job. For example, the disclosure of past convictions for offences related to sex and violence is usually required when applying for jobs that involve working with children, as well as certain jobs in the judicial system. Other industries/occupations in which criminal background checks are required include police, gaming and racing, taxi driving, pawnbrokers, nursing, and correctional services.
Equal opportunity in the workplace is a key part of protecting human rights in Australia, with legal implications for individuals and employers. To find out more about workplaces which value diversity, check out our article at GradAustralia.