Unfair Discrimination Claims
Discrimination complaints can be unfair
The idea that a discrimination complaint could be unfair or unjust is a difficult topic for many people.
The thought that such a serious allegation could be made – and yet be wrong – makes people uncomfortable. For this reason, anybody facing a workplace discrimination complaint faces a real disadvantage. Yet, it can be overcome.
Getting informed about your potential options before deciding how to respond to a discrimination claim is a good first step. There are a number of ways to learn more about these issues if you are the subject of an allegation, for instance:
- Learn more about defending allegations of unlawful discrimination (read on)
- Get urgent, initial legal advice from an employment lawyer (learn more)
- Get representation to challenge unfair or false allegations (details below)
Getting expert advice can be crucial to understanding your rights and responsibilities. It may also assist you in exercising your options and defending your interests. Employers may dismiss executives and employees found to have engaged in unlawful discrimination. Conciliation outcomes from the Fair Work Commission show getting reinstated is unlikely:
Whether by agreement through conciliation or following a decision after a contested process, experience shows that it is relatively rare for people to be reinstated following dismissal.
As with any legal issue, there is no substitute for getting professional legal advice as early as possible. However, understandably, before hiring a lawyer, most people want to get better informed about the issues they face.
Why unfair allegations may arise
Unlawful workplace discrimination occurs when an employer takes ‘adverse action’ against an employee or prospective employee because of a personal attribute that is protected from discrimination:
- sexual preference
- physical or mental disability
- marital status
- family or carer’s responsibilities
- political opinion
- national extraction or social origin
Discrimination can happen at all points of the employment cycle:
- Recruiting and selecting staff
- Negotiating employment contracts – terms, conditions, and benefits
- Training opportunities
- Transfer opportunities
- Promotion opportunities
- Redundancy or retrenchment selection
- Disciplinary decisions, including dismissal
Workplace discrimination does occur. However, complaints of discrimination that are false and unfair also happen.
It is not always a case of the accuser lying about events. People can wrongly label something as unlawful discrimination.
Executives and managers undertake many tasks that affect the rights or interests of workers who may feel, rightly or wrongly, they are being unfairly targeted. It is often in that context a discrimination complaint is made against an executive or manager.
There are many legitimate, albeit controversial, actions executives and managers must take, including:
- comment and advice, including negative feedback
- performance appraisals, including counselling
- performance management
- changes to working arrangements
- investigating complaints
- instigating disciplinary processes
Upsetting people will not necessarily be unlawful discrimination unless the conduct is linked to, or based on, one of the protected characteristics set out in discrimination laws.
Malicious complaints can occur. For example, it is possible for employees to try to cover poor performance by unfairly claiming a manager has discriminated against them – mischaracterising proper scrutiny as discrimination.
There is no ‘all-purpose’ response to discrimination claims
There are many different approaches a person may take when faced with a complaint about alleged discrimination. The reasons for this are obvious. Not all allegations are the same and individual circumstances need to be considered.
Discrimination in the workplace can take different forms. A study by the Diversity Council of Australia on discrimination and harassment in the workplace showed the highest rates were experienced by people who are Aboriginal and Torres Strait Islander, people with non-Christian religious affiliations, people with disabilities, people who identify as LGBTIQ+, and young workers (under 30):
The varied ways a discrimination complaint may arise, and the various forums in which discrimination complaints can be progressed, means there is no ‘one-size-fits-all’ approach to responding.
Understand your options
When responding to an unfair discrimination claim, there may be a number of options open. However, because the situation may be unfamiliar, involves short timeframes, and is generally highly stressful, people do not always appreciate their options or weigh them in a considered manner.
Four common options when responding to a workplace discrimination complaint are:
- Obtaining advice and guidance;
- Challenging the process;
- Challenging the allegations; and,
- Initiating ‘without prejudice’ negotiations.
There are many different approaches a person may take and there is generally no one ‘right answer’ given different people will have different priorities. In some cases, there may be multiple strands to the response, with each strand having a distinct purpose but combining to operate together.
Often the work of an employment lawyer involves assisting their client to test the credibility and reliability of claims and sometimes engaging in ‘without prejudice’ negotiations to resolve the issue quickly.
Every case is different. So anybody seeking personalised advice about a specific situation should consult a lawyer as soon as possible, as certain options may cease to be available as time passes. Anderson Legal offers a fixed-price, no-obligation initial consultation for people facing unlawful discrimination allegations (learn more).
Get appropriate support
In a workplace context, people facing allegations of discrimination are often instructed by their employers to keep the process confidential. It can make the process feel isolating and disempowering.
Isolation and disempowerment can lead people to feel they are simply subject to the process and that the result will be what it will be. This feeling can undermine the opportunity a person has to put their best foot forward.
An experienced lawyer can help you gain a sense of support and authority.
In dealing with workplace discrimination complaints, it can be surprising how often employers and managers (even with the benefit of advisers), fail to afford procedural fairness, fail to comply with their own policies and procedures, or fail to take into account relevant information.
The question is: How seriously such flaws are taken by decision-makers? The answer may depend, to some degree, on the authority of the person raising the issue. For this reason, having the support and authority of a lawyer on your side can be critical.
Dr Robert Cialdini identified ‘the principle of authority’ as one of the six key principles of influence in his book, “Influence: The Psychology of Persuasion”. It describes the tendency for people to agree or comply with people seen as having authority on a subject. Numerous studies have shown the impact of the ‘principle of authority’ on decision-makers. In the Harvard Business Review, he described the essence of the authority principle in this way:
Two thousand years ago, the Roman poet Virgil offered this simple counsel to those seeking to choose correctly: “Believe an expert.” That may or may not be good advice, but as a description of what people actually do, it can’t be beaten.
So, if you are facing a workplace discrimination allegation, particularly one you feel to be false or unfair, getting a lawyer may assist in your voice being heard. However, the true value of a lawyer should run deeper.
The persuasiveness of the response is critical
While knowing the law is fundamental for a lawyer, so is their expertise as an advocate.
Advocacy is all about persuasion.
Persuasion leads thought and action. As such, in dealing with a workplace discrimination complaint, persuasiveness is a critical element in any response.
Work can be one of our defining characteristics, or at least an important part of how we perceive ourselves. So if you have been wrongly accused of unlawful discrimination, it is obvious that it should generally be treated as being of the utmost importance.
Experienced lawyers are able to draw on past cases where similar issues were encountered and whether particular strategies or responses were persuasive. This bank of knowledge can be drawn upon to provide expert guidance for anybody newly facing such a situation.
Anderson Legal provides legal advice to executives and employees facing workplace discrimination claims and investigations. Contact this firm for a confidential, fixed-price, and no-obligation initial consultation.