What Is Workplace Discrimination?
Workplace discrimination occurs when an employee or job applicant is treated less favourably than another person in similar circumstances because of a protected attribute. It can affect any aspect of employment — from recruitment and hiring decisions, to conditions of work, to promotion opportunities, to dismissal.
Protected attributes under NSW and federal legislation include:
Race — including descent, nationality, ethnic origin and skin colour
Sex — including gender identity, sexual orientation, family responsibilities and marital status
Age — treating a person less favourably because they are older or younger
Disability — physical, intellectual, psychiatric, sensory or neurological impairment
Pregnancy and carer responsibilities
Religion and political opinion
Transgender status and intersex status
Discrimination does not need to be overt or intentional. It can arise from patterns of behaviour, workplace policies or decisions that disproportionately disadvantage a group of workers with a protected attribute.
Types of Workplace Discrimination in NSW
Under NSW and federal anti-discrimination law, workplace discrimination can take several forms:
Direct discrimination: This occurs when an employee is treated less favourably than another person in the same or similar circumstances because of a protected attribute. For example, being passed over for a promotion explicitly because of age, or being dismissed upon disclosing a pregnancy.
Indirect discrimination: This occurs when a workplace rule, policy or practice applies equally to all workers but has a disproportionate negative impact on people with a particular protected attribute. For example, a physical fitness requirement that disadvantages employees with a disability, where the requirement is not essential to the role.
Workplace harassment and discrimination: Harassment is a form of discrimination that involves behaviour directed at a person because of a protected attribute which humiliates, offends, intimidates or creates a hostile work environment.
It may include offensive comments, exclusion, belittling behaviour or unwanted physical contact. It may be carried out by a manager, colleague or even a third party such as a customer or contractor.
Your Rights Under NSW Law
Several legislative frameworks regulate discrimination at work in NSW. Discrimination in the workplace can be unlawful. There are many laws operating in Australia which prohibit it and protect persons from unlawful discrimination. The key legislative frameworks include:
Anti-Discrimination Act 1977 (NSW) — prohibits discrimination in employment on the grounds of race, sex, pregnancy, age, disability, homosexuality, transgender status, marital status and several other attributes
Fair Work Act 2009 (Cth) — protects employees from adverse action taken by an employer for discriminatory reasons, including dismissal, demotion or changes to employment conditions
Sex Discrimination Act 1984 (Cth): provides federal protection against discrimination on the basis of sex, pregnancy, marital status, and family responsibilities
Disability Discrimination Act 1992 (Cth): requires employers to make reasonable adjustments for employees with disabilities and prohibits discriminatory treatment in the workplace
Under the Fair Work Act, employers cannot take adverse action against an employee for discriminatory reasons. This applies across the full employment lifecycle — hiring, conditions of employment, and dismissal. Employees who experience unfair treatment at work in NSW on the basis of a protected attribute have legally enforceable rights under these frameworks.
Examples of Workplace Discrimination
Workplace discrimination takes many forms. Common examples that may give rise to a discrimination claim in NSW include:
Being denied a job application or interview because of your cultural background or ethnicity
Being passed over for promotion because of your age, despite having relevant experience and qualifications
Being dismissed or having your employment conditions changed after disclosing a pregnancy or requesting parental leave
Being excluded from training opportunities or workplace social events because of your religion or political beliefs
Being subjected to ongoing offensive comments or hostile behaviour related to your disability, sexuality or gender identity
Having your hours reduced or being moved to a less favourable role following a workers compensation claim — which may constitute unlawful discrimination and adverse action
The two client matters below illustrate how workplace discrimination in NSW can manifest and the outcomes available:
Client matter: A worker was discriminated against by his employer due to his age. This resulted in psychological injury, including stress and anxiety. In addition to a discrimination claim, there was also a claim available for workers compensation benefits.
Client matter: A worker was being harassed by other colleagues by reason of his cultural background. This not only affected his mental wellbeing but also his capacity to continue working. We were able to make a discrimination claim as well as a workers compensation claim to recover the loss of wages and related medical expenses.
How to Prove Workplace Discrimination
Proving workplace discrimination in NSW requires more than a general sense of unfair treatment. You need to establish a clear connection between the treatment you experienced and a protected attribute. Key elements in building a discrimination claim include:
Evidence of differential treatment: Showing that you were treated less favourably than a comparable colleague who does not share your protected attribute. This is known as a comparator — it demonstrates that the treatment was linked to your characteristic, not to your conduct or performance.
Documentary evidence: Emails, performance reviews, meeting notes, messages, HR correspondence and workplace records can all establish patterns of behaviour or specific incidents of discriminatory treatment.
Witness statements: Colleagues who observed discriminatory conduct, heard discriminatory comments, or can speak to patterns of behaviour in the workplace can provide valuable supporting evidence.
A pattern of conduct: A single incident may be sufficient, but a documented pattern of behaviour — particularly where it aligns with a protected attribute — significantly strengthens a claim.
The applicable burden of proof and evidentiary standard will vary depending on whether a claim is made under state or federal law and before which body. A workplace discrimination lawyer can advise you on the most appropriate legal pathway and what evidence you will need to support your claim.
What to Do If You Experience Discrimination at Work
If you believe you are experiencing discrimination at work, taking prompt action can protect your rights and strengthen any future claim. Consider the following steps:
1. Document what has happened — keep a written record of incidents, including dates, what was said or done, and who was present
2. Raise the issue internally — speak to your manager, HR department or use your employer's grievance or complaints process where it is safe to do so
3. If the matter is not resolved internally, consider lodging a formal complaint with an external body
4. Contact Anti-Discrimination NSW — for complaints under the Anti-Discrimination Act 1977 (NSW)
5. Contact the Australian Human Rights Commission — for complaints under federal legislation including the Fair Work Act or Sex Discrimination Act
6. Seek legal advice from a workplace discrimination lawyer as early as possible to ensure time limits are met and your rights are protected
Making a Workplace Discrimination Claim in NSW
If you have experienced workplace discrimination in NSW, there are several complaint and claims pathways available to you. Brydens Lawyers can assist you with:
Negotiating a settlement of your complaint with your employer to compensate you for any discrimination
Helping you make a complaint to the Anti-Discrimination Board of New South Wales or to the Australian Human Rights Commission
Initiating proceedings in the Equal Opportunity Division of the NSW Civil and Administrative Tribunal or the Federal Court of Australia
In most cases, complaints to Anti-Discrimination NSW must be lodged within 12 months of the discriminatory conduct occurring. Complaints to the Australian Human Rights Commission generally carry a similar timeframe. Missing these deadlines can result in your complaint being declined, regardless of its merits.
Once a complaint is lodged, the relevant authority will typically attempt to resolve the matter through conciliation — a structured negotiation process between you and your employer, facilitated by an independent officer. If conciliation does not resolve the matter, the complaint may be escalated to a tribunal or court for formal determination.
Speak to a Workplace Discrimination Lawyer
Brydens Lawyers are experts in the prosecution of workplace discrimination claims on behalf of our clients. For a free*, no-obligation consultation, contact Brydens Lawyers on 1800 848 848 or book online today. Our No-Win, No-Fee* policy means that if your claim is unsuccessful, you pay nothing. *Conditions apply.
Brydens Lawyers — #WEDO workplace discrimination claims.
Workplace Discrimination FAQs
What qualifies as workplace discrimination in NSW?
Workplace discrimination occurs when an employee is treated unfairly because of a protected attribute such as race, age, gender, disability, or pregnancy. In NSW, this can include being denied opportunities, treated differently at work, or dismissed for discriminatory reasons. The behaviour must be linked to a protected characteristic under discrimination laws.
How do I prove workplace discrimination?
To prove workplace discrimination, you need evidence showing that you were treated less favourably than others due to a protected attribute. This may include emails, witness statements, workplace records, or patterns of behaviour. It is also important to show a clear connection between the treatment and the discriminatory reason.
How long do I have to make a discrimination claim in NSW?
In most cases, discrimination complaints in NSW should be made within 12 months of the incident. Time limits can vary depending on the type of claim and the body you apply to, so it is important to seek legal advice from a workplace discrimination lawyer as early as possible.
What compensation can I claim for workplace discrimination?
Yes, compensation may be available if your discrimination claim in NSW is successful. This can include financial losses such as lost wages, as well as compensation for emotional distress or humiliation. In some cases, outcomes may also include reinstatement or workplace changes.
What should I do if I experience discrimination at work?
If you experience discrimination at work, you should document what has happened and consider raising the issue internally through your employer or HR. If the issue is not resolved, you may be able to lodge a complaint with Anti-Discrimination NSW or the Australian Human Rights Commission. Legal advice can help you understand your options.
Do I need a lawyer for a workplace discrimination claim?
You are not required to have a lawyer to make a discrimination claim, but legal advice can significantly improve your chances of a successful outcome. A workplace discrimination lawyer can help assess your case, gather evidence, and guide you through the claims process.
What Compensation Can You Claim for Workplace Discrimination?
The compensation available for a successful workplace discrimination claim in NSW will depend on the circumstances, the severity of the conduct and its impact on your employment and wellbeing. Typical outcomes include:
Financial loss — compensation for lost wages, lost employment opportunities, or loss of future earnings where the discrimination affected your career
Compensation for emotional distress and humiliation — recognising the psychological impact of discriminatory treatment
Reinstatement — being returned to your role or a comparable position where dismissal was found to be discriminatory
A written apology from the employer or perpetrator
Workplace policy changes or staff training requirements
Where workplace discrimination has resulted in psychological injury, there may also be a concurrent workers compensation claim available for loss of wages and medical expenses — as the client matters on this page illustrate. Brydens Lawyers can advise you on all available pathways.
When to Speak to a Workplace Discrimination Lawyer
You should consider speaking to a workplace discrimination lawyer if:
You believe you have been treated unfairly at work because of a personal characteristic
Your internal complaint has been dismissed or ignored by your employer
You have been dismissed and suspect it may be linked to a protected attribute such as age, pregnancy or disability
You are unsure whether your situation qualifies as unlawful discrimination
You are approaching or concerned about missing the time limit for making a complaint
If you believe that you have been discriminated against in your workplace — whether based on your race, sexual orientation, age, disability, political opinion, religious beliefs, or other grounds — contact Brydens Lawyers without delay.
