Discrimination and sexual harassment
It’s illegal to :
- discriminate against someone because of a legally protected attribute (eg characteristic) they have (eg race, sex, sexuality, disability)
- sexually harass someone
- vilify a person or group of people because of their race, religion, sexuality or gender identity
- bully someone (in certain situations).
Discrimination happens when a person is treated unfairly because of a legally protected attribute (eg characteristics such as their race, sex, sexuality, disability) in certain areas of public life, like work, school and applying for a rental property.
Sexual harassment is unwelcome sexual attention that a reasonable person would expect to offend, humiliate or intimidate. Some forms of sexual harassment may be a criminal offence.
Vilification is inciting hatred, serious contempt or severe ridicule of someone because of their race, religion, sexuality or gender identity. Some forms of vilification may be a criminal offence.
Bullying is repetitive behaviour that is unwelcome and offensive, intimidating, humiliating or threatening.
If you’ve been the victim of discrimination, sexual harassment, vilification or bullying, you should get legal advice.
If you or someone you know is in danger, contact the police. In an emergency call 000.
COVID-19
COVID-19 is a form of disability. It is illegal to discriminate against someone because of a disability. Discrimination is unlawful in certain areas of public life, like work, schools or when providing goods and services. Discrimination is treating you worse than others because you currently have COVID-19, previously had COVID-19 or are suspected of having COVID-19. Some examples of discriminatory treatment could include refusing a rental property or terminating your employment. There are some exceptions permitting discrimination, such as workplace health and safety, but they need to be reasonable.
Harassment because of a disability is also unlawful if it happens in a place of employment or education or from people providing goods and services. Harassment includes insults or humiliating jokes.
COVID-19 may also lead to other forms of discrimination, such as racial discrimination. Racial discrimination is also illegal.
Discrimination
Discrimination happens when a person is treated unfairly because of a legally protected attribute (eg characteristic) in certain areas of public life.
Direct discrimination on the basis of an attribute happens if a person treats, or proposes to treat, someone with that particular attribute less favourably than someone without that attribute would be treated in a situation that is the same or not materially different. For example— an employer dismissing a woman from her job because she’s pregnant.
Indirect discrimination on the basis of an attribute happens if a person imposes, or proposes to impose, a term:
- with which a person with an attribute doesn’t or isn’t able to comply
- with which a higher proportion of people without the attribute comply or are able to comply , and
- that’s not reasonable.
An example of indirect discrimination is an employer having a policy that staff can’t work part-time, as people with children and family responsibilities could be disadvantaged.
Discrimination is only illegal if it happens on the basis of one of the following legally protected attributes (eg characteristics):
- sex
- relationship status (including defacto and same-sex partner)
- pregnancy
- parental status
- breast feeding
- age
- race
- impairment (eg disability or medical condition, such as HIV status)
- religious belief or religious activity
- political belief or activity
- trade union activity
- lawful sexual activity (status as a sex worker)
- gender identity
- intersex status
- sexuality
- family responsibilities
- association with or relation to person who has one of these attributes,
and it happens in one of the following areas:
- employment and work related areas
- education
- providing goods and services
- superannuation
- insurance
- disposition of land
- accommodation
- club membership and affairs
- local government
- administration of laws and government programs.
There are some exceptions that mean it’s not always illegal to discriminate against someone . Some examples include genuine occupational requirements, equal opportunity measures and workplace health and safety .
If you think you’ve experienced discrimination, you should get legal advice before making a complaint .
Criminal record discrimination
Criminal record discrimination is when someone doesn’t have equal opportunity in employment because of their criminal record. This includes:
- being refused a job
- being dismissed
- being denied training opportunities, or
- being harassed at work.
It isn’t discrimination if a person’s criminal record means that they are unsuitable or unable to do the job. This is determined on a case-by-case basis. Some employers in certain industries may be legally required to refuse employment to people with certain types of criminal records.
If you think you’ve experienced discrimination in the workplace because of your criminal record, you can make a complaint to the Australian Human Rights Commission (AHRC). The AHRC will try to resolve the complaint by conciliation. If the complaint isn’t resolved, they may prepare a report for the Federal Government with its recommendations. These recommendations are not legally enforceable.
If you think you’ve experienced discrimination because of your criminal record, you should get legal advice.
Employee dress codes and discrimination
Employers often have rules about how their employees are expected to dress in the workplace. Dress codes can be discriminatory if they result in some employees being treated differently because of a legally protected attribute (eg requiring female employees, but not male employees, to wear revealing clothing could be sex discrimination).
It may also be discrimination if the dress code appears to treat everyone the same, but which actually disadvantages some people because of a protected attribute (eg a dress code which requires employees wear a particular uniform which is difficult for a pregnant woman to wear could be discrimination).
Visit the Australian Human Rights Commission website for information about dress codes.
Sexual harassment
Sexual harassment is unwelcome conduct of a sexual nature done with the intention of offending, humiliating or intimidating the other person or that a reasonable person would expect to offend, humiliate or intimidate. It doesn’t have to be repeated or ongoing to be against the law.
Some examples of conduct of a sexual nature are:
- fondling
- pinching
- touching
- embracing
- grabbing
- kissing
- repeated requests for dates
- requests for sexual favours
- sexual gestures and body movements
- smutty jokes and comments
- leering and staring
- questions about a person's sex life
- sex based insults
- displays of sexually graphic material (eg cartoons, calendars).
Sexual harassment doesn’t cover mutual or consensual conduct of a sexual nature.
Sexual harassment is not restricted to the workplace and applies in all situations in Queensland.
Both males and females can be the victims or perpetrators of sexual harassment.
Can sexual harassment be a criminal offence?
Some forms of sexual harassment may be a criminal offence for example—making obscene phone calls, indecent exposure or sexual assault. If you have been charged with a criminal offence, get legal advice.
You can make a complaint of sexual harassment to the Queensland Human Rights Commission (QHRC) (for Queensland matters) or the AHRC (for Commonwealth matters).
If the sexual harassment happened at work or by someone you know from work, you may also have the option of making a complaint to the Fair Work Commission.
If you think you’ve experienced sexual harassment, you should get legal advice.
If you’ve been sexually assaulted, you should report it to the police. In an emergency call 000.
You can also get support from a sexual assault support service.
Vilification
Vilification is a public act that incites hatred, serious contempt or severe ridicule of someone because of their race, religion, sexuality or gender identity.
A public act includes:
- writing letters to the public
- speaking in a public place
- putting up notices in public
- using the internet
- wearing or displaying clothing, signs, emblems or insignia .
If the vilification includes threats of physical harm to a person or their property, it may be a criminal offence.
If you or someone you know is in danger, contact the police. In an emergency, call 000.
The QHRC has information and examples of vilification on their website.
If you think have been the victim of vilification, you can make a complaint to the QHRC or in some situations, to the AHRC. You should get legal advice.
Bullying
Bullying is repetitive behaviour that is:
- unwelcome and offensive
- intimidating
- humiliating
- threatening.
Bullying can take place anywhere—including at school or in the workplace. Bullying doesn’t include reasonable management action undertaken in a reasonable way by your employer.
If the bullying includes discrimination (eg your age, race, religion, disability) and it’s covered by discrimination law, you can make a complaint to the QHRC (for Queensland matters) or the AHRC (for Commonwealth matters).
Even if the bullying isn’t unlawful, it may still be against workplace or education policy. Get legal advice.
If bullying happens at work, your employer may have policies on how to deal with this behaviour.
If the behaviour creates a risk to workplace health and safety and there is a risk it will continue, you can apply to the Fair Work Commission for an order to stop the bullying. See workplace bullying and harassment.
You can also get help from:
If the bullying happens at school or university, the education facility should have a policy on how to deal with this behaviour. Contact the school, university or Education Queensland for help. For non-government schools, contact the school directly or the school's governing body (eg Catholic Education).
Making a complaint about discrimination or sexual harassment
Discrimination and sexual harassment come under both state and commonwealth laws. You should get legal advice to find out the best way to handle your matter.
If you think you’ve experienced discrimination, you can contact the following commissions to find out if they can help:
You can make a complaint in writing to the QHRC or the AHRC.
The Commission will help you and the respondents to try to resolve the complaint in a conciliation conference. If the complaint can’t be resolved it may proceed to a formal hearing in the Queensland Civil and Administrative Tribunal (QCAT), the Queensland Industrial Relations Commission (QIRC) the Federal Circuit and Family Court of Australia or the Federal Court of Australia.
If QCAT, QIRC or the Federal Court decides that you’ve suffered discrimination, it may order the respondent to pay a sum of money for the loss or damage you suffered, reinstate you to your employment (where relevant), make a public or private apology or implement programs to eliminate unlawful discrimination.
Time limits
There are time limits for making a discrimination claim. You have 12 months from the date the discrimination started to make a claim (including sexual harassment claims) to the Queensland Human Rights Commission. You have 24 months to make a claim under the Sex Discrimination Act or 6 months under the Age Discrimination Act, Disability Discrimination Act, Racial Discrimination Act to the Australian Human Rights Commission.
Do I need legal advice?
You should get legal advice if you think you’ve experienced discrimination, or if you have been subjected to sexual harassment or workplace bullying.
How to get legal advice
We may give legal advice about discrimination and sexual harassment.
Our anti-discrimination unit provides specialist legal advice and help in this area to victims of discrimination and sexual harassment. It doesn’t give legal advice to respondents to complaints of discrimination and sexual harassment.
The following organisations may be able to give you legal advice.
Cairns Community Legal Centre—Disability Discrimination Legal Service gives free specialist legal advice and help about disability discrimination.
Basic Rights Queensland—Disability Discrimination Legal Advocacy Service gives free specialist legal advice and help about disability discrimination.
LGBTI Legal Service gives free legal advice and information to LGBTI clients, including legal advice in relation to discrimination.
LawRight Self Representation Service (QCAT) gives legal advice and helps people applying to the Queensland Civil and Administrative Tribunal for matters including discrimination disputes. They may be able to help with drafting documents and correspondence about your legal matter with QCAT. They don’t provide legal representation.
LawRight Self Representation Service (Federal) gives legal advice and help to people involved in civil proceedings in the Federal Circuit and Family Court or Federal Court for matters involving anti-discrimination. They maybe be able to help with drafting documents and correspondence relating to your legal matter. They don’t provide legal representation.
Queensland Law Society can refer you to a private lawyer for advice about employment and industrial law. They may be able to provide representation for your matter.
Who else can help?
These organisations may also be able to help. They don’t give legal advice.
Queensland Working Women's Service is a free, confidential advisory service to help Queensland women with work related matters. They can also help with advocacy and referrals regarding industrial relations matters including employment rights, unfair dismissal, discrimination and harassment.
WorkSafe Queensland (Queensland Government) deals with complaints about workplace harassment, safety and fatigue. They also give information on making a complaint internally through your workplace, or externally through their complaints process.
Australian Council of Trade Unions—if you’re a member of a union, you can get advice and help about employment matters from your union.
Queensland Human Rights Commission gives information and helps to resolve complaints about discrimination in public life, including in the workplace.
Australian Human Rights Commission gives information on human rights and resolves complaints about discrimination or breaches of human rights under federal laws.
Disclaimer: This content is for general purposes only and not legal advice. If you have a legal problem, please contact us or speak to a lawyer. View our full disclaimer.
Last updated 18 April 2023