Are there any exemptions?

Particular exemptions mean that not all forms of discrimination are against the law in all circumstances. The Act provides a range of exemptions that can be argued. However, only certain exemptions apply in relation to employment. It is also possible to apply to the Anti-Discrimination Tribunal for the granting of an exemption.

Exemptions recognise that in some circumstances discrimination can be acceptable provided it occurs for specific reasons or purposes. Many exemptions allow the employment of people of a particular sex or race or age etc when it is necessary for the particular job. Other exemptions allow employers to boost the employment opportunities for people from disadvantaged groups through equal opportunity policies. Whether a particular exemption will apply will usually be a question of fact, which only the Tribunal can decide. However, any possible exemption should be raised with the Commission as this may assist in conciliating a resolution of a complaint.

Welfare and equal opportunity measures

Special measures designed to benefit or promote equal opportunity for a member of a disadvantaged group or a person with particular needs, (eg special training courses for people from non-English speaking backgrounds) may be used if it can be shown that they are for the benefit of a disadvantaged group in a particular area of employment.

Genuine occupational requirements

An employer may impose genuine occupational requirements for a position. This may include selecting an actor for a dramatic performance on the basis of age or race for reasons of authenticity, or employing only women applicants for positions involving body searches of women.

Workplace Health and Safety

It is lawful to discriminate in order to protect public health or the health and safety of people at a place of work. For example, a person with a chronic back injury may not be suitable for work requiring heavy physical labour.

Supplying special services or facilities

Employers need to offer equal opportunities to everyone and when necessary make reasonable adjustments to meet the needs of workers with impairments. Discrimination against people with impairments, for example by denying them a job, is only lawful if an employer can demonstrate that it would impose an unjustifiable hardship to make reasonable adjustments to accommodate their impairment.

Factors that are relevant in determining whether unjustifiable hardship applies include the nature and cost of supplying the special service or facility, the number of people to benefit, the financial circumstances of the employer, the disruption that the supplying of those services or facilities might cause and the nature of any benefit or detriment to all people concerned. Reasonable adjustments may include modifying premises or equipment (eg providing ramp access, lowering workbenches etc), adjusting recruitment and selection procedures (eg providing an interpreter), changing the job design and work practices (eg allowing regular meal breaks for a worker with diabetes) and providing training and other assistance (eg support persons).

Educational or health related institutions

The 'genuine occupational requirement' exemption has been extended to allow religious bodies to 'reasonably discriminate' (except on the basis of age, race or impairment), in the area of employment, against a person who openly acts in a way contrary to the employer’s religious beliefs.

Single sex accommodation

Live-in jobs where sleeping accommodation is provided for one sex only and supplying separate accommodation would impose unjustifiable hardship on an employer, is permitted.

Workers to be a married couple

An employer may discriminate on the basis of marital status if the live-in job is to be held concurrently by a married or de facto couple.

Work with children

The exemption regarding work with children has also been extended to allow employers hiring people to work with children, to discriminate on the basis of gender identity (but not sexuality), lawful sexual activity (which now means sex workers), people with a conviction for a child sex offence, or people disqualified from working with children under any Act in Australia.

Discrimination on any grounds except race is also allowable when employing someone to perform domestic or child care services in the employer’s own home.

Acts in compliance with other laws

Discrimination is permitted when a person is acting in compliance with pre-existing industrial awards and agreements, other pre-existing legislation and court orders.

Youth wages

An employer may advertise for a worker who is under 21 years of age and pay them according to their age.

index of Discrimination in Employment