Affirmative action in the workplace is a complex issue to tackle. Anti-discrimination laws in Australia prevent employers for treating a person unfairly because they belong to a particular group in society. These “protected attributes” include treating someone differently based on their race, sex, religion, physical or mental disability, and others. There are some circumstances however, where discriminating based on a protected attribute is lawful, or can be lawful after an exemption is granted. This is known as affirmative action, or equal employment opportunity (EEO). Below, we break down some of the varying facets of affirmative action in the workplace.

Understanding lawful discrimination in the workplace

An employer can positively discriminate in the context of affirmative action under several circumstances. This includes where it is a genuine requirement of the job to do so, or where it will help redress disadvantages a group may have experienced in the past.

Example 1 – Genuine requirement of the job: An employee who is required to conduct body searches of other people, such as some security guards, may be recruited based on their sex. For example, an employer may specifically advertise for a male security guard to conduct body searches on other males.

Example 2 – Genuine requirement of the job: An employer recruiting a tour guide for an under-35’s tour company can advertise specifically for applicants aged under 35. The law allows this where in providing services, a business provides benefits or concessions for people in a particular age group ‘in good faith’.

Example 3 – Redressing historical disadvantage: A local council may advertise to provide positions specifically for Indigenous Australians. This would give training and employment opportunities to a group that has been disadvantaged in these areas in the past. An exemption can be applied for under this circumstance. This will usually only be granted where evidence of a broader affirmative action strategy can be demonstrated.

Example 4 – Redressing historical disadvantage: As part of a broader affirmative action strategy, an employer advertises positions only open to people with a disability. Legislation only protects discrimination against people who do have a disability, not those that don’t. This recruitment would be lawful and would not need an exemption.

More detailed information on specific exemptions (and cases that do not require exemptions) is outlined by state-based regulators. These include the Anti-Discrimination Commission Queensland, or the Anti-Discrimination Board of NSW. Each of the state-based anti-discrimination commissions provides comprehensive advice for employers and employees on managing equal employment opportunities and affirmative action.

The states and territories oversee separate anti-discrimination Acts. These work in cooperation with federal legislation, such as the Fair Work Act, to provide guidance for employers on managing their obligations.

Understanding affirmative action rights and responsibilities is very important for workplace operations, but particularly so during the recruitment and onboarding process. Employers should balance the needs of the business with their legal and social obligations in recruiting new staff.

Equal opportunity for women in the workplace

Most affirmative action and equal opportunity regulations are maintained by the states and territories. In 1999 however, the Commonwealth Government passed the Equal Opportunity for Women in the Workplace Act.

The Act requires businesses with more than 100 employees to develop equal opportunity programs for women in the workplace. This includes submitting an annual public report outlining an analysis of current issues relating to equal opportunity for women, the current priorities to address, and planned actions for the following year. Comprehensive statistics must be kept about the occupations and employment status of women in the organisation.

Public sector organisations

All state and Commonwealth public sector organisations are legally required to create and maintain EEO plans. This includes government departments and authorities, health authorities and hospitals and local councils.

The affirmative action plans must pay particular attention to groups that have been disadvantaged in the past. These groups are women, Aboriginal and Torres Strait Islander people, people from non-English speaking backgrounds and people with disabilities.

It is crucial for managers and employers to correctly manage affirmative action in the workplace to ensure that your business is operating fairly.