What is unlawful discrimination?

Updated September 2026

Unlawful discrimination occurs when a person is treated unfavourably because of a characteristic protected by law, or is disadvantaged by an unreasonable requirement, condition or practice linked to that characteristic.

Australian workplaces are covered by overlapping federal, state and territory laws. The protected characteristics, legal tests and exceptions vary, so employers must consider all legislation that applies to their workplace. See the Australian Human Rights Commission’s guide to discrimination laws.

What characteristics are protected from workplace discrimination?

Under the Fair Work Act 2009 (Cth), employers must not take adverse action against employees or prospective employees because of protected attributes, including:

• Race, colour, national extraction or social origin.
• Sex, sexual orientation, gender identity or intersex status.
• Age.
• Physical or mental disability.
• Marital status.
• Family or carer’s responsibilities.
• Pregnancy or breastfeeding.
• Religion or political opinion.
• Experiencing family and domestic violence.

Other protections may apply under federal, state or territory anti-discrimination laws. Read the Fair Work Ombudsman’s guidance on discrimination at work.

Trade union membership and participation in lawful industrial activities are also protected under the Fair Work Act’s general protections provisions.

Where can workplace discrimination occur?

Workplace discrimination can occur throughout the employment relationship, including:

• Advertising roles, recruiting and selecting staff.
• Setting pay, employment conditions and benefits.
• Allocating duties, shifts and work opportunities.
• Providing access to training and development.
• Selecting employees for promotion or transfer.
• Making decisions about redundancy or dismissal.

What is direct discrimination?

Direct discrimination generally occurs when someone is treated less favourably, or unfavourably, because of a protected characteristic. The precise legal test depends on the legislation that applies.

For example, rejecting a suitably qualified applicant because of their age may constitute direct discrimination.

What is indirect discrimination?

Indirect discrimination can occur when a requirement, condition or practice appears to treat everyone equally but disadvantages people with a protected characteristic and is not reasonable in the circumstances.

For example, requiring every employee to start work at a fixed early time may disadvantage employees with caring responsibilities. Whether this is unlawful depends on the applicable law and whether the requirement is reasonable.

The Victorian Equal Opportunity and Human Rights Commission explains direct and indirect discrimination, including how seemingly uniform rules can create unequal outcomes.