Discrimination standards
Direction and guidance on the relevant processes, protections and legislation in place to prevent, recognise and respond to discrimination in schools and workplaces.
Audience
All department staff and contractors.
| Version | Date | Description of changes | Approved by |
|---|---|---|---|
| V01.0.1 | 04/11/2024 | Updated to align language with the Public Service Commission Code of Ethics and Conduct. | Acting Director, Culture, Diversity and Talent |
| V01.0.0 | 05/09/2024 | Under the 2023 Policy and procedure review program, new policy document consolidating existing instructions and improving clarity and readability. | Chief People Officer |
| Ongoing union consultation is occurring and amendments may be made from time to time. |
About the policy
Under the Our culture policy, the department is committed to creating open, supportive and inclusive workplaces where our workforce is safe, respected, included, valued, and inspired to bring their whole selves to work by:
- providing compassionate environments where staff, learners and community members are treated with dignity and respect, and where everyone feels empowered to speak up about unacceptable behaviour or work without fear of negative consequences - even when mistakes are made
- creating inclusive school communities and workplaces that are completely free from unlawful discrimination of any kind, including harassment or bullying
- building a respectful and responsive culture where all members of staff are encouraged to raise workplace concerns and, where appropriate, participate in resolving those concerns; underpinned by a fair, efficient and accessible complaints handling process.
| Term | Definition |
|---|---|
| Direct discrimination | When a person is treated less favourably than another person in the same (or materially the same) circumstances on the grounds of a protected characteristic. |
| Employee | A worker engaged by the department as on ongoing, temporary or casual employee, or as a contractor, volunteer or secondee. |
| Indirect discrimination | When a rule or requirement that applies to everybody unfairly disadvantages people who possess a characteristic protected by law and is not reasonable in the circumstances. |
| Protected characteristics | Personal identifiers protected by anti-discrimination legislation. These include age, carer status, disability, gender identity, marital or domestic status, political or trade union affiliation, pregnancy and breastfeeding status, race, religion, sex and sexual orientation. |
All employees:
- must take all necessary steps to prevent, address and report discrimination, harassment and bullying in the workplace
- must know, understand, and comply with the department's Code of ethics and conduct policy document and all ethical and legal responsibilities that apply.
Senior employees (including senior executives, senior officers, principals, managers and supervisors):
- must identify and address allegations of discrimination, harassment and bullying in a prompt manner
- must inform employees about this procedure and the Staff complaint procedures (staff only)
- must communicate the availability of any support services that may assist an employee, including the Employee Assistance Program (EAP), a union or a professional association.
Discrimination standards
1. What is discrimination?
Discrimination is treating someone unfairly because of a characteristic they have or are assumed to have.
Characteristics that are protected by anti-discrimination laws include age, carer status, disability, gender identity, marital or domestic status, pregnancy and breastfeeding status, race, sex, sexual orientation, and religious belief, affiliation or affinity.
Discrimination against these characteristics is against the law if it happens:
- at work
- in education
- where goods and services are provided
- where accommodation is provided
- within registered clubs.
Examples of discrimination include:
- not offering a position to a prospective employee because they are pregnant
- making an employee redundant because they are ‘too old’
- refusing to enrol a student because they have a disability
- failing to meet a staff member’s request for a workplace adjustment, in circumstances where doing so would not cause unjustifiable hardship (please refer to the Workplace adjustment procedures).
As per the Professional and ethical standards policy, the department does not tolerate discrimination, harassment or bullying of any kind.
2. Types of discrimination
2.1 Age
Age discrimination is against the law. It is when someone has been treated less favourably than somebody else because:
- of their age
- they are the relative, friend or colleague of someone of a particular age.
Indirect discrimination is also against the law. This is when there is a rule or requirement that is the same for everyone but unfairly affects people of a particular age or age group, and is not reasonable in the circumstances.
2.2 Carer status
Carer discrimination is against the law in the workplace. It is when someone has been treated less favourably than somebody else because of their responsibilities as a carer.
The law protects people who support or care for:
- their child (including a stepchild, adopted child or foster child)
- a child or adult for whom they are a guardian
- a family member.
Indirect discrimination is also against the law. This is when there is a rule or requirement that is the same for everyone but unfairly affects people who have carer’s responsibilities and is, therefore, not reasonable in the circumstances.
2.3 Disability
Disability discrimination is against the law. It is when someone has been treated unfairly because:
- they have a disability
- people presume they cannot undertake tasks because of real or perceived disability
- they used to have a disability
- they may acquire a disability in the future
- they are the friend, relative or colleague of a person with disability.
In the NSW public sector, disability is defined as long-term physical, mental health, intellectual, neurological or sensory differences that, in interaction with various attitudinal and environmental barriers, may hinder full and effective participation in society on an equal basis with others.
The department has a strengths-based approach to disability, focused on social inclusion and altering the environment (for example, providing accessible bathrooms) and attitudes (for example, assuming someone cannot do something because of their disability) rather than the individual.
Indirect discrimination is also against the law. This is when a rule or requirement is the same for everyone but unfairly affects people with disability and is not reasonable in the circumstances.
It is also against the law for someone to be treated unfairly because they have an assistance dog, or because they require specific equipment or assistance because of their disability.
There are some exceptions in the Anti-Discrimination Act 1977 for compliance with other laws and for reasonable measures to protect public health. For example, it is not unlawful to discriminate against someone if it is necessary to comply with another law or regulation, including public health orders.
It is also not unlawful to discriminate against a person on the ground of disability if the disability concerned is an infectious disease (such as measles) and the discrimination is reasonably necessary to protect public health.
2.4 Gender identity
Discrimination against trans and gender diverse people is against the law. It is when someone has been:
- treated less favourably than somebody else because they are transgender, or people think they are transgender
- treated as their former sex when they are a recognised transgender person
- forced to follow a rule or requirement as their former sex
- treated less favourably than somebody else because they are the relative, friend or colleague of a person who is transgender, or a person who is assumed to be transgender.
The law protects all transgender people, no matter how they affirm their gender.
Indirect discrimination is also against the law. This is when there is a rule or requirement that is the same for everyone but unfairly affects people who are transgender and is not reasonable in the circumstances.
2.5 Marital or domestic status
Marital or domestic status discrimination is against the law. It is when someone has been treated less favourably than somebody else because they are:
- single
- married
- in a de facto relationship
- separated
- divorced
- widowed.
Indirect discrimination is also against the law. This is when there is a rule or requirement that is the same for everyone but unfairly affects people of a particular marital or domestic status and is not reasonable in the circumstances.
2.6 Political or trade union affiliation
It can be discriminatory when a person does not experience equal opportunity in employment because of their political opinions or activity in a trade union. This includes:
- being refused a job or dismissed from a job
- being refused a promotion, transfer or other benefit
- given unfair terms or conditions of employment
- being denied training opportunities
- being refused flexible work arrangements or being harassed or bullied.
However, discrimination of this kind is not against the law under NSW or Commonwealth anti-discrimination legislation.
2.7 Pregnancy and breastfeeding
Pregnancy and breastfeeding discrimination is against the law. It is when someone has been treated less favourably than somebody else because:
- they are pregnant, breastfeeding or expressing milk
- they are the relative, friend or colleague of a person who is pregnant, breastfeeding or expressing milk.
Indirect discrimination is also against the law. This is when there is a rule or requirement that is the same for everyone but unfairly affects people who are pregnant or breastfeeding and is, therefore, not reasonable in the circumstances.
2.8 Race
Race discrimination is against the law. It is when someone has been treated less favourably than somebody else because:
- of their race
- they are the relative, friend or colleague of someone of a particular race.
The definition of race includes colour, nationality, descent and ethnic, ethno-religious or national origin.
Indirect discrimination is also against the law. This is when a rule or requirement is the same for everyone but unfairly affects people of a particular race and is, therefore, not reasonable in the circumstances.
2.9 Religion
Religious discrimination is against the law. It occurs when a person publicly incites hatred towards, serious contempt for, or severe ridicule of, a person or group of people because of their religious beliefs, affiliations or activities. Religious discrimination can also occur when a person publicly targets another person due to their lack of a specific belief or affiliation.
Indirect discrimination is also against the law. This is when a rule or requirement is the same for everyone but unfairly affects people of a particular religion and is, therefore, not reasonable in the circumstances.
2.10 Sex
Sex discrimination in the workplace is against the law. It is when someone has been treated less favourably than somebody else because:
- of their sex (because they are a man, woman or intersex person)
- they are the relative, friend or colleague of someone of a particular sex.
Indirect discrimination is also against the law. This is when a rule or requirement is the same for everyone but unfairly affects people of a particular sex and is not reasonable in the circumstances.
2.11 Sexual orientation
The Sex Discrimination Act 1984 protects people from unfair treatment on the basis of their sexual orientation.
Sexual discrimination is when someone has been treated less favourably than somebody else because of their sexual orientation towards persons of the same sex, persons of a different sex, or persons of the same sex and persons of a different sex.
Indirect discrimination is also against the law. This is when there is a rule or requirement that is the same for everyone but unfairly affects people based on their sexual orientation and is, therefore, not reasonable in the circumstances.
Under the Anti-Discrimination Act 1977, homosexual discrimination is against the law in NSW. It is when someone has been treated less favourably than somebody else because:
- they are gay or lesbian, or someone thinks they are gay or lesbian
- they are the relative, friend or colleague of someone who is gay or lesbian.
While currently only homosexuality is a protected sexual orientation under NSW law, the department completely rejects all forms of discrimination, harassment or bullying based on sexual orientation, gender identity and intersex status.
3. How to report discrimination
Any employee, student, parent, carer or community member who experiences or witnesses discrimination at a school or department workplace can make a report.
A report of discriminatory behaviour can be made to any member of staff in schools, including a teacher, principal or school Anti-Racism Contact Officer (ARCO).
Reports of discriminatory behaviour in other work areas across the department can be made to any workplace manager. Reports may be made verbally or in writing.
There are different processes for addressing reports of discrimination depending on who the report is about:
- A report of discriminatory behaviour by a student will be managed in accordance with the Student behaviour policy.
- Potentially discriminatory behaviour by an employee may constitute misconduct and may require a report to the department’s Professional and Ethical Standards directorate (PES).
To determine whether a report to PES is required, consult the Guidance on misconduct and/or complete the PES Reporting Guide.
4. Anti-discrimination legislation
Both the NSW and Commonwealth governments have established laws that protect people from discrimination. These laws generally overlap and prohibit the same types of discrimination. The department and its employees must comply with both NSW and Commonwealth legislation at all times.
- The Anti-Discrimination Act 1977 makes it unlawful to discriminate against a person based on race, sex, transgender, marital or domestic status, disability (which includes mental illness), homosexuality and age. A complaint under this Act can be made to Anti-Discrimination New South Wales, the state government body responsible for the promotion of anti-discrimination and equal opportunity principles and policies throughout NSW. In 2023, the Act was amended to include religious vilification. The amendment makes it unlawful to publicly incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons, because of their religious beliefs, affiliations or activities.
- The Crimes Amendment (Publicly Threatening and Inciting Violence) Act 2018 (PDF 198 KB) amends the Anti-Discrimination Act 1977 and the Crimes Act 1900. It makes it a criminal offence to publicly threaten or incite violence towards a person because of their race, religious belief or affiliation, sexual orientation, gender identity, intersex status or because they have HIV or AIDS.
- The Multicultural NSW Act 2000 requires all individuals and institutions in NSW to respect and make provision for the culture, language and religion of others.
- The Industrial Relations Act 1996 and the Work Health and Safety Act 2011 prevent an employer or organisation from victimising or discriminating against an employee if the employee raises a WHS complaint. Together, these Acts prevent an employer from harassing or discriminating on the basis of a protected characteristic.
- The Age Discrimination Act 2004 prohibits discrimination in employment on the basis of age and applies to young and older workers alike. The Act protects Australians from age discrimination in other areas of public life, including education, getting or using services, or renting or buying a house or unit. It also makes it unlawful to harass or bully another person because of their age.
- The Disability Discrimination Act 1992 makes it unlawful to discriminate against a person because of their disability in many areas of public life. These include employment, education, getting or using services, renting or buying a house or unit, and accessing public places.
- The Racial Discrimination Act 1975 promotes equality before the law for all people regardless of race, colour or national or ethnic origin. It makes it unlawful to discriminate against people on the basis of race, colour, descent or national or ethnic origin.
- The Sex Discrimination Act 1984 protects people from unfair treatment on the basis of their sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy and breastfeeding status. It protects workers with family responsibilities and makes sexual harassment against the law.
- The Australian Human Rights Commission Act 1986 sets up the administrative framework for the operation of the Australian Human Rights Commission, an independent statutory organisation responsible for the protection and promotion of human rights in Australia. The commission has the power to receive, investigate and conciliate complaints of unlawful discrimination.
5. Legal liability
In some circumstances, the department will be liable for the unlawful discriminatory acts and omissions of its employees. However, the department will not be liable for the deliberate and wilful misconduct of its employees.
Young students are generally not bound by anti-discrimination laws, and the department is not liable for the actions of discrimination by students against employees.
However, the department may be legally responsible if it fails to act in response to discrimination by a student towards an employee. For example, a school may be found to have treated a person unfavourably if it does not enforce a student behaviour management policy to prevent unlawful discrimination.
6. Legal support
Circumstances may prevent the department making workplace adjustments to avoid disadvantaging an employee due to a protected characteristic. It is possible that making an adjustment would either be unreasonable or impose unjustifiable hardship on the department.
On these occasions, managers should contact Legal Services (staff only) for advice.
Mandatory tools and templates
Supporting tools, resources and related information
- Anti-Discrimination Act 1977
- Crimes Amendment (Publicly Threatening and Inciting Violence) Act 2018 (PDF 198 KB)
- Age Discrimination Act 2004
- Disability Discrimination Act 1992
- Racial Discrimination Act 1975
- Sex Discrimination Act 1984
- Australian Human Rights Commission Act 1986
- Multicultural education policy
- Student behaviour policy
- School Community Charter
- Complaints handling policy
- Anti-racism policy
- Professional and ethical standards policy
- Diversity, Inclusion and Belonging Strategy 2023-26
Policy contact
The Executive Director, Employee Relations monitors the implementation of this procedure, regularly reviews its contents to ensure relevance and accuracy, and updates it as needed.