Discrimination and Human Rights Lawyers for Australian Organisations

A discrimination complaint should be addressed promptly, carefully and consistently with procedural fairness.

We advise on complaints involving:

• disability discrimination;
• race discrimination;
• sex discrimination;
• age discrimination;
• pregnancy discrimination;
• family or carer responsibilities;
• marital or relationship status;
• gender identity;
• sexual orientation;
• intersex status;
• religious belief or activity;
• political belief or activity;
• employment activity;
• association with a person who has a protected attribute; and
• victimisation arising from a complaint.

Our assistance may include reviewing the allegations, identifying the applicable legislation, advising on immediate risk controls and preparing a response to the complainant or regulator.ing of their legal position, practical alternatives and settlement parameters.

Workplace discrimination issues may arise during recruitment, employment, performance management, promotion, remuneration, workplace change or termination.

Under the Fair Work Act, an employer must not take adverse action against an employee or prospective employee because of a protected attribute. However, different treatment will not necessarily constitute unlawful discrimination where it is unrelated to a prohibited reason.

We assist employers with:

• recruitment and selection processes;
• pre-employment enquiries;
• workplace adjustments;
• flexible work arrangements;
• performance management;
• disciplinary action;
• workplace investigations;
• promotion and development opportunities;
• parental leave;
• illness and injury;
• restructures and redundancies;
• termination decisions;
• general protections claims; and
• allegations of discriminatory adverse action.

We help employers distinguish legitimate management action from conduct that may create discrimination, adverse action or procedural risk.ched.d terms and identify provisions that should be clarified, negotiated or amended.

Disability discrimination matters may involve physical, psychological, neurological or other disabilities, including disabilities that are current, past, future or imputed.

We advise organisations on:

• reasonable workplace adjustments;
• inherent requirements of a role;
• medical information;
• fitness for work;
• return-to-work arrangements;
• flexible working arrangements;
• accessibility;
• performance and conduct concerns;
• extended absence;
• unjustifiable hardship;
• recruitment decisions; and
• termination involving illness or disability.

Federal disability discrimination law contains provisions concerning inherent requirements and unjustifiable hardship, but their application depends on the particular facts and context.

We help organisations obtain and assess relevant information without making assumptions about a person’s capacity or legal rights.tter.y, we help the business assess its position and pursue an appropriate strategy.

Sex discrimination and sexual harassment complaints may expose an organisation to significant legal, workplace, safety and reputational risks.

We assist with:

• sexual harassment complaints;
• sex-based harassment;
• hostile workplace environment allegations;
• pregnancy discrimination;
• breastfeeding discrimination;
• family and carer responsibilities;
• gender identity discrimination;
• sexual orientation discrimination;
• victimisation;
• workplace investigations;
• risk assessments;
• policies and procedures;
• training and prevention measures; and
• responses to regulatory complaints or proceedings.

Our advice may address both the individual complaint and the organisation’s broader systems for preventing and responding to unlawful conduct.pe of the arbitration clause and whether arbitration is appropriate for the dispute.

Complaints involving race, nationality, ethnic origin, religion or culturally related conduct require a careful assessment of the words, actions and surrounding context.

We advise on:

• race discrimination;
• racial harassment;
• workplace conduct and communications;
• religious dress or observance;
• rostering and leave requests;
• recruitment and promotion;
• customer or client conduct;
• complaints between employees;
• organisational policies;
• public statements;
• victimisation; and
• responses to formal complaints.

We help organisations investigate the allegations fairly while considering any overlapping employment, safety or reputational issues.rmination.lp prevent unnecessary escalation and protect the organisation’s rights.

Policies alone will not eliminate discrimination risk, but clear expectations and effective complaint processes are important components of an organisation’s compliance framework.

We prepare and review:

• equal opportunity policies;
• discrimination and harassment policies;
• sexual harassment policies;
• complaint-handling procedures;
• workplace investigation procedures;
• codes of conduct;
• recruitment policies;
• reasonable adjustment procedures;
• diversity and inclusion policies;
• flexible work policies;
• disciplinary procedures;
• whistleblower policies; and
• board or management reporting processes.

We also review how policies are implemented in practice, including training, reporting pathways, management accountability and record-keeping.lly focused, with careful consideration given to the strength of the claim, the likely costs, the prospects of recovery and the broader impact of litigation on the business.

An internal complaint may require preliminary enquiries, an informal resolution process or a formal workplace investigation.

We assist with:

• assessing the seriousness of allegations;
• identifying conflicts of interest;
• selecting an appropriate investigator;
• preparing allegations;
• preserving documents and evidence;
• interviewing witnesses;
• maintaining appropriate confidentiality;
• providing procedural fairness;
• reviewing investigation findings;
• advising on disciplinary outcomes;
• communicating the result; and
• managing ongoing workplace relationships.

The process should be proportionate to the allegations and sufficiently independent to withstand later scrutiny.

The Australian Human Rights Commission receives and seeks to resolve complaints concerning unlawful discrimination and certain alleged human rights breaches. Its complaint process may include investigation and conciliation.

We advise and represent organisations in relation to:

• notices of complaint;
• jurisdictional and preliminary issues;
• requests for information;
• preparation of formal responses;
• supporting documents and evidence;
• without prejudice negotiations;
• conciliation conferences;
• settlement proposals;
• deeds of release;
• termination of complaints; and
• potential proceedings following an unresolved complaint.

We help clients respond accurately without making unnecessary admissions or overlooking available legal and factual arguments.

A complaint may also be made under state or territory anti-discrimination or equal opportunity legislation.

We assist organisations with:

• identifying the applicable jurisdiction;
• responding to regulator correspondence;
• preparing statements of position;
• gathering documentary evidence;
• jurisdictional objections;
• conciliation and mediation;
• settlement negotiations;
• tribunal proceedings; and
• managing overlapping federal or workplace claims.

Where more than one complaint or proceeding is available, we assess the interaction between jurisdictions and the risk of duplicative claims.

Discrimination allegations in employment may also be pursued as general protections claims under the Fair Work Act 2009 (Cth).

We advise employers on claims alleging adverse action because of:

• race;
• colour;
• sex;
• sexual orientation;
• age;
• physical or mental disability;
• marital status;
• family or carer responsibilities;
• pregnancy;
• religion;
• political opinion;
• national extraction;
• social origin; or
• the exercise of a workplace right.

The Fair Work Act prohibits adverse action where a prohibited reason is a substantial and operative reason for the action. These matters may also involve evidentiary and reverse-onus issues requiring careful preparation.

We assist with Fair Work Commission conferences, Federal Court proceedings, settlement negotiations and the preparation of evidence.

Human rights considerations may arise in government, community, education, health, disability, aged care and other service-delivery settings.

We advise organisations on:

• human rights policies and frameworks;
• equality and non-discrimination;
• privacy and personal information;
• freedom of expression;
• freedom of thought, conscience and religion;
• cultural rights;
• decision-making affecting vulnerable persons;
• service access and eligibility;
• restrictive practices;
• public authority obligations;
• complaint-handling;
• procurement and contracting; and
• internal human rights assessments.

The precise legal obligations will depend on whether the organisation is a public authority, performs public functions or is otherwise subject to particular statutory requirements.

Where a complaint cannot be resolved, formal proceedings may follow in a tribunal or court.

We advise and represent organisations in matters involving:

• discrimination claims;
• victimisation claims;
• general protections proceedings;
• adverse action allegations;
• representative or systemic claims;
• judicial review issues;
• applications for urgent relief;
• interlocutory disputes;
• damages and compensation;
• civil penalties;
• mediation;
• hearings; and
• appeals.

Our assistance may include preparing pleadings, evidence, submissions and settlement strategy, as well as working with barristers where appropriate.