Avoiding discrimination is more than just basic compliance

Discrimination law is founded upon the notion of inherent dignity and inalienable rights. Perhaps the watchwords which summarise the principles protected under anti-discrimination legislation are equality, inclusion and opportunity.

Key Points
  1. The key principles protected under anti-discrimination legislation can be summed up as equality, inclusion and opportunity.  Although these are simple principles, the expression of them in workplace policy and in a person’s lived experience is significantly more complex.
  2. Despite genuine attempts by employers at large to support inclusion, publicly available data and government investigations show that discrimination still occurs and may be endemic, in some cases. Cultural change, as opposed to more complex policies and procedures, is needed to reduce opportunities for discrimination to take place.
  3. A guiding principle of the cultural shift  which is arguably required is the framing of organisational discrimination policies not as burdensome but as reflective of key, positive principles and values of an organisation.

1)    Avoiding discrimination is more than just basic compliance

Discrimination law is founded upon several key principles. The notion of inherent dignity and inalienable rights are key to anti-discrimination law generally. Perhaps the watchwords which summarise the principles protected under anti-discrimination legislation are equality, inclusion and opportunity.

These are, prima facie, simple principles although the expression of them in workplace policy is significantly more complex. Though these principles often form the core of organisational policy and procedure for anti-discrimination, they are generally misunderstood and are seen by persons affected by discrimination as hollow statements at the opposite spectrum to what that person’s experience is.

Despite genuine attempts across many industries to support inclusion, publicly available data and government investigations show that discrimination still occurs and may be endemic, in some instances.

For instance, a 2017 NSW Government enquiry, Education of students with a disability or special needs in NSW, found that:

… much of the evidence received by this inquiry highlights a stark contrast between the principles of inclusion promoted in our education system and the reality experienced by these children and their families.

Given the extensive work undertaken by many organisations to avoid discrimination, alongside the development of policy and procedure must follow the organisation’s commitment to cultural change, and the promotion of an organisation’s values as “lived” and represented by its staff.

A guiding principle of the cultural shift arguably required to promote equity and inclusiveness could be to frame organisational discrimination policies not as burdensome but as reflective of key, positive principles. This is crucial to successful implementation - shifting policies from aspirational documents and a framework where organisations feel like they are “forced” not to discriminate, towards  strong principles and values embodied by business leaders staff alike, where it ought to be possible for simple and subtle shift in collective thinking to occur and to promote inclusion and equity.

The NSW Government report again provides some insight into this small but important shift in approach:

Ultimately, we want to ensure that all students are given the education they rightfully deserve – one that does not distinguish between ‘those with disability and those without’ but acknowledges a single cohort of students with varying degrees of need.

Hicksons Partner, Jennifer Parkes, recently again presented on issues of discrimination law and organizational policies at the Australia and New Zealand Education Law Association (ANZELA) Conference in Melbourne, Victoria and is an in- demand presenter on this key area of workplace relations law across Australia.

Post by Jennifer Parkes.

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