Discrimination in any form is a painful experience that creates barriers and unfairly prevents people from reaching their full potential. However, not all instances of discrimination are necessarily direct.
Indirect discrimination is often subtle and difficult to identify. It occurs when a rule or requirement that appears to apply equally to everyone in fact disadvantages people because of a personal characteristic. For example, a workplace may introduce a policy requiring all employees to work on Sundays. While this applies to all workers, it may disadvantage those with religious obligations at that time.
Indirect discrimination can be incredibly detrimental to an individual’s mental health, exacerbating feelings of exclusion. In the workplace, this can lead to reduced productivity and a weakened team culture. This also highlights the need for proper training and policies to identify indirect discrimination and promote a truly equal environment.
Indirect Discrimination Explained
Indirect discrimination is the legal term for when a policy, practice or rule is the same for everyone, but disadvantages people who share a protected characteristic. Unlike direct discrimination, which explicitly targets individual characteristics, indirect discrimination applies to everyone in the same way, but may unwittingly treat some people unfairly.
Based on Australian anti-discrimination law, indirect discrimination applies to the following characteristics:
- Age
- Disability
- Gender identity
- Marital status
- Race
- Religion or belief
- Sex
- Sexual orientation
Typically, indirect discrimination can be less obvious than direct discrimination, and it may often be unintentional. However, both of these kinds of discrimination are protected under federal law.
Examples of Indirect Discrimination
Because it can often appear more subtle, recognising indirect discrimination can be a challenge. To help you understand this law, consider the following four examples:
- Indirect Discrimination on the Basis of Sex
A worksite establishes a policy where all employees must start their day at 7 am. Although this rule intends to apply fairly to everyone, it may disadvantage employees who need to care for children. This could, in turn, potentially affect women, who are more likely to take on the responsibility for caregiving. Although the policy may not have been intended to affect women, unless the employer can justify the change, it amounts to indirect discrimination against them. - Indirect Discrimination on the Basis of Religion
An employer announces a new requirement that all employees must work on a Sunday. However, this may disadvantage employees who are practising Christian’s, who recognise Sunday as their day of sabbath. If an employer refuses an employee’s request not to work, the new requirement may amount to indirect discrimination on the basis of religion. - Indirect Discrimination on the Basis of Disability
The only way to enter the main entrance of a public building is up a flight of stairs, with no available ramp installed. Although installing stairs is not by itself discriminatory, the lack of accessible options may exclude disabled individuals who need wheelchair access. - Indirect Discrimination on the Basis of Age
A business advertises a new job opening that requires at least ten years of experience. There are situations where this may be justified; the role may require certain skills that can only be obtained through extensive experience. However, if the role doesn’t require these skills and the employer is simply seeking an older worker, this may inadvertently disadvantage younger candidates who are equally qualified.
Negative Effects of Indirect Discrimination
Indirect discrimination can be potentially harmful to an individual and a workplace when left unaddressed. This may lead to the following negative effects:
- Mental health impacts
Policies that indirectly discriminate against someone can lead to damaging effects on their mental health and psychological well-being. This may directly contribute to feelings of isolation, depression, and anxiety, as well as undermining self-confidence. - Feelings of exclusion
Because indirect discrimination can disadvantage someone for their personal characteristics, this can foster feelings of exclusion. Particularly in a workplace setting, this unfair treatment can weaken an employee’s commitment to their employer. - Decline in Engagement and Productivity
Workplaces are built on trust and respect between employees and their employer. If an employee believes they have been treated unfairly, this may lead to a breakdown of respect, which can facilitate a toxic workplace environment. This can create decreased productivity and morale, with higher employee turnover and absenteeism. - Legal Consequences and Brand Damage
When an employer fails to address indirect discrimination, they may be faced with legal challenges from federal, state and territory laws that offer protection against discrimination. A bad word of mouth can travel quickly, with businesses risking irreparable damage to their reputation if they find themselves in violation of any anti-discrimination laws. Not only can this be costly in legal fees, but it can also make it difficult to attract new employees. - Barriers to Diversity and Inclusivity
When a particular policy or rule discriminates against a certain characteristic or people, this creates a less diverse and inclusive environment. Different people can provide different perspectives, which can benefit a workplace with fresh ideas and experiences. It may also detract from a business’s goals for inclusivity.
How Can You Protect Yourself From Indirect Discrimination?
If you believe you are a victim of indirect discrimination, you should be aware of the steps you can take:
- Understand your rights
It is important for employees to understand their rights. In Australia, protection against direct and indirect discrimination is provided through a combination of federal and state laws. At the national level, the Fair Work Act 2009 protects employees from discrimination based on attributes such as sex, disability, or age. Additionally, every state and territory has its own bodies that provide similar protections. If you are unsure of your rights as an employee, you can seek support through Positive Duty. - Gather evidence
Try to maintain a detailed record of any instances in which you were indirectly discriminated against. Examples of evidence could be an email you received about the introduction of a new policy, or a detailed record of how it disadvantaged you. Also helpful to include any names of people who are witnesses to the policy or practice. - Speak to your employer
Because indirect discrimination can often be unintentional, simply discussing with your employer how a policy has affected you unfairly may help you gain an explanation. This can open the way to finding a solution that works for both parties. Depending on your workplace, this might involve speaking with the Human Resources (HR) department or addressing your concerns directly with your manager. - Make a formal complaint to outside bodies
If you feel your grievance wasn’t seriously addressed by your employer, you can choose to file a complaint with an outside body. For example, employees can contact the Fair Work Commission, which is the federal workplace relations tribunal, that may step in to address claims of discrimination with their employer directly. - Seek support from a lawyer
Reach out to a lawyer or legal advisor if you need further assistance with filing a complaint. Employment discrimination lawyers in Australia can help support you with guidance on the relevant laws and the process for filing a complaint.
How to Prevent Indirect Discrimination
Under the Fair Work Act, employers have a responsibility to be proactive in protecting their employees from any workplace discrimination. Some of the steps an employer can take include:
- Review Policies
Employers must regularly conduct internal audits of their policies and practices to ensure they don’t discriminate against any type of people. Should cover all the different aspects of your workplace, including recruitment, performance evaluation and promotion. Anonymous feedback can be a great way to identify discriminatory policies that require review. - Open Channels for Concerns
Employers should establish clear procedures that encourage employees to report any concerns or complaints. Employees should understand how to raise a complaint, and employers must address these matters seriously and promptly. - Make reasonable adjustments
Where possible, employers should make adjustments to accommodate an employee’s personal characteristics to ensure they have an equal opportunity to thrive. For example, an employee with a disability may require special equipment to carry out their assignments. Or making adjustments to an employee’s working hours to support a caregiving responsibility. - Provide training
Organise training that educates all employees, especially those in management or leadership positions, on how to identify indirect discrimination and the steps for prevention. It should also be incorporated with resources for employees who have experienced discrimination to be able to seek support. - Foster Inclusivity
Take steps to promote diversity and respect within your workplace, ensuring all employees feel equally valued. This can include celebrating inclusivity where possible which helps to create a more welcoming and supportive environment. - Seek advice
If you are unsure of how to approach preventing discrimination, seek advice. Contacting experts, such as Positive Duty, can help you identify blind spots within your workplace and find improvements.
When is Indirect Discrimination Justified?
A policy, procedure or rule can escape punishment under relevant federal and state laws if there is an “objective justification.” This is where a valid reason is provided, or when it is a proportionate means of achieving a legitimate aim, meaning there was no alternative that was less discriminatory.
For example, a business’s selection criteria may require certain skills that naturally disadvantage different candidates from applying. As long as the employer can demonstrate an objective justification, they have a valid defence to claims of indirect discrimination. There may be a company based in Australia that conducts an important partnership with another company in Japan, and requires employees who speak Japanese. Although certain candidates may be disadvantaged because of their background, the company can justify this action because it’s based on a legitimate business need overseas, rather than an intention to discriminate.
The only way an employer can justify indirect discrimination is by proving they had a valid reason for applying the policy in question. Just because a policy didn’t intend to disadvantage certain people, it doesn’t mean that it isn’t discriminatory. Importantly, this won’t prevent employees from contesting your justification. If they believe the policy to be unfair, they have the right to seek employment tribunals.
Although it can be hard to detect, indirect discrimination can be an unfair barrier to groups of peoples. For example, when a flight of stairs is installed without wheelchair access, this may indirectly discriminate against people with disabilities. This form of discrimination can foster feelings of exclusion within individuals, and affect work productivity and culture for employers. To learn more about indirect discrimination, and your rights and obligations, contact our team at Positive Duty.