Discrimination at work

Unlawful discrimination in the workplace

It is illegal to treat someone unfairly in the workplace because of any of the following attributes:

• gender identity
• sexual orientation
• intersex status 
• race, including colour, nationality, ethnicity or immigrant status
• age
• disability
• marital or domestic status 
• pregnancy
• breastfeeding
• carers or family responsibilities
• religion
• experiencing family and domestic violence.

If you have been treated unfairly at work because you have a protected characteristic, you may have experienced unlawful discrimination. 

Sometimes there are legal exceptions or exemptions to discrimination law. Some parts of discrimination law don’t apply to some organisations or some services that meet the special needs of a particular group of people. This may also include affirmative action programs which aim to address inequalities.

Bullying or harassment

Not all bullying fits within the legal definition of unlawful discrimination. For bullying at work to be unlawful discrimination it needs to be based on a person's background or personal characteristics, such as their gender identity, race, age, marital status, sexual orientation, disability, pregnancy, breastfeeding, intersex status, or carer's or family responsibilities.

For more information, see Bullying in the workplace on the Fair Work Ombudsman website.

If you have been bullied or discriminated against at work, you should get legal advice.

Responding to unlawful discrimination

If you have been unlawfully discriminated against at work, you may be able to:

• speak to the person involved if it is safe to do so
• speak to your manager or supervisor about what is happening
• consider any policies that your workplace has about discrimination and dealing with a grievance
• speak to Human Resources team, if your workplace has one
• speak to your union, if you are a member
• complain to Anti-Discrimination New South Wales
• complain to the Australian Human Rights Commission
• complain to the Fair Work Ombudsman.

If you have been unlawfully discriminated against, you should get legal advice.

Complain​ to Anti-Discrimination New South Wales

For information about how to make a complaint, including the complaint forms, see How to make a complaint on the Anti-Discrimination NSW website. 

You have 12 months from when the discrimination occurred to make a complaint.

Before you make a complaint to Anti-Discrimination New South Wales, you should consider all the options available to you and get legal advice.

Compla​in to the Australian Human Rights Commission

You can make a complaint about discrimination to the Australian Human Rights Commission (AHRC) by:

• completing a complaint form and posting it to the AHRC, or
• making a complaint online.

You have 12 months from when the discrimination occurred to make a complaint to Anti-Discrimination New South Wales.

You have 24 months to make a complaint to the AHRC from when the discrimination occurred.  Before 12 December 2022, the time limit was 6 months for any complaints other than those involving unlawful sex discrimination or sexual harassment.

For complaints about employment discrimination based on religion, criminal record, trade union activity, sexual preference, political opinion and social origin, you have 12 months to make a complaint to the AHRC. In some cases, you might be able to complain out of time, but you should get legal advice about your circumstances. 

For more information about the complaint process, see Make a complaint on the AHRC website.

Before you make a complaint to the AHRC, you should consider all the options available to you and get legal advice.

Different rules apply if you have been dismissed.

For more information, see Termination.

If your complaint is about serious vilification, it may be referred to the Attorney General by Anti-Discrimination New South Wales to be prosecuted as a crime. The prosecution must be started within six months of the crime, so you should make your complaint as soon as possible. 

For more information, see Vilification on the Anti-Discrimination New South Wales website.

Complain to the Fair Work Commission

You may be able to make a complaint to the Fair Work Commission if your employer took adverse (harmful) action against you while discriminating against you.

Adverse action may breach general protection laws if your employer does any of the following because of your personal features or attributes:

• dismisses you
• treats you differently to others
• offers you worse terms than other employees
• changes your job in a way that has a negative effect
• takes, or threatens to take, adverse action against you.

An application to deal with a general protections dismissal dispute must be lodged by the employee within 21 calendar days after the day the dismissal took effect.

The 21 calendar day time limit does not apply to general protections applications that do not involve a dismissal. Applications where the employee has not been dismissed can be lodged up to six years from the day the alleged contravention occurred.

For more information, see General protections dismissal.  

Victimisation

If you made a complaint based on discrimination at work (including sexual harassment), it is unlawful for your employer to victimise you for making the complaint. Victimisation is when you are treated worse, or poorly, because you made a complaint. It can include things like isolating you from your colleagues or changing your work duties. 

You can make a victimisation complaint to Anti-Discrimination New South Wales or the Australian Human Rights Commission.

For more information, see:

• Victimisation on the Anti-Discrimination New South Wales website
• Complaints on the Australian Human Rights Commission website.

You can also make a general protections claim to the Fair Work Commission for breach of a workplace right.  An application to deal with a general protections dismissal dispute must be lodged by the employee within 21 calendar days after the day the dismissal took effect.

For more information, see General protections dismissal.

If you believe you are being victimised for making a complaint, you should get legal advice.

Complain to the Fair Work Ombudsman

If you are a national system employee, you can make a complaint to the Fair Work Ombudsman about discrimination. 

You have a legal right at work to be protected from unlawful discrimination. If your employer is unlawfully discriminating against you, it may be adverse action and you could apply to the Fair Work Commission to resolve your dispute or apply to the Federal Circuit and Family Court of Australia. 

Apply t​o the NSW Civil and Administrative Tribunal

If Anti-Discrimination NSW doesn’t resolve your complaint, you can ask for it to be referred to the Administrative and Equal Opportunity Division of the NSW Civil and Administrative Tribunal (NCAT). In some cases, the President of Anti-Discrimination NSW can refer your complaint to NCAT, even if you do not ask for this to happen.

There is no fee to apply to NCAT in these cases.

You can’t complain to NCAT directly about discrimination. You must complain to Anti-Discrimination New South Wales first.

For more information, see Anti-discrimination on the NSW Civil and Administrative Tribunal.

Apply t​o the Court

If you made a complaint to the Australian Human Rights Commission, you may be able to start court proceedings in the Federal Circuit and Family Court or the Federal Court of Australia.

If you made a complaint to the Fair Work Ombudsman, you may be able to apply to the Fair Work Commission. 

Before starting legal action, you should get legal advice.

For more information, see:

• Human rights: Overview on the Federal Circuit and Family Court of Australia website, and
• Guide to Human Rights Cases on the Federal Court of Australia website.