COVID-19 – Implications for Employers series – Part Five – Discrimination
Across the course of this week, The Sector has been sharing an informative series, designed to explore the implications of the COVID-19 pandemic for employers. Covering issues such as employee safety, workplace obligations, leave entitlements and managing business continuity, the series is a must-read, tailored to the early childhood education and care (ECEC) sector, based on generalised advice from law firm Corrs Chambers Westgarth.
In the final part of the series, we explore the topic of discrimination as it relates to COVID 19 in the workplace. The other four parts of the series, covering leave entitlements, employee safety, business continuity and labour issues have been linked accordingly.
Amidst the anxiety about the spread of COVID-19, reports are emerging of increased discrimination against people of an ethnic or perceived ethnic background.
The Australian Human Rights Commission has urged ‘unity and not division’ as Australia responds to the outbreak. Whilst it should be understood that racist and discriminatory behaviour is not only hurtful, but also unlawful, crisis situations can heighten prejudice and bias, and cause people to act in ways that they otherwise would not normally.
Australian anti-discrimination laws impose obligations on people not to discriminate against others on the basis of particular attributes including race, sex, family or carer’s responsibilities, national extraction or social origin, when engaging in specified activities, such as employment or providing goods and services. The law of discrimination also encompasses other attribute-based conduct that causes harm, such as harassment or vilification.
Employers, Corrs Chambers Westgarth recommended, “will need to be on alert and be aware that conduct may be unlawful even if it arises from a genuinely held fear about the COVID-19 virus.”
Directions made on the basis of race or ethnicity, such as a direction to work from home or not attend work because of Chinese ethnic origin alone are likely to be unlawful. Decisions need to be made on appropriate and reasonable grounds, and employers also need to be mindful not to breach anti-discrimination laws when implementing plans.
Employers should also reflect on whether they have taken all reasonable steps to prevent employees behaving in an unlawful manner towards fellow employees, customers, clients or members of the public.
Taking reasonable steps might mean having well-publicised diversity and harassment policies, and training all staff on the issue. Managers in particular must be trained about their responsibility to identify and prevent discriminatory behaviour.
For more advice and support in relation to discriminatory behaviour training, please see here.