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Discrimination toolkit

Exceptions and exemptions

Are there any exceptions in discrimination law?

Young man seating and writing in a notebook

Step 3: The third step is to find out whether a legal exception or exemption might apply in your situation. Some parts of discrimination law do not apply to some organisations or situations. Sometimes, for example, parts of discrimination law might not cover private schools, very small businesses, charities, single sex sports and religious organisations.

This might mean your situation is not covered by discrimination law, even if you ticked a box for Step 1 and Step 2.

Discrimination law also recognises that some types of unequal treatment are good for the community. For example, services that meet the special needs of a certain group, such as women’s health centres, are generally OK. Also, programs that aim to fix longstanding inequalities, such as affirmative action programs for women or Aboriginal employment programs, are generally OK too.

Discrimination law does not override other commonsense laws. For example, the minimum legal ages for drinking alcohol, driving a car or voting are exempt from the age discrimination laws.

Exceptions in discrimination law can be complex and technical. They can also change over time, so it’s very important to get legal advice about whether discrimination law will cover your problem.

Nada works in a bakery with three other employees. One afternoon the boss sees Nada’s girlfriend pick her up from work. When she finishes her shift the next day, the boss says to her, “Don’t bother coming back tomorrow. My customers don’t want to be served by a dyke.”

This is clearly discrimination, but unfortunately Nada is not covered by discrimination law in NSW. This is because she works in a business that has less than six employees. Businesses of this size are exempt from the homosexuality parts of the Anti-Discrimination Act (NSW).

But Nada can use the federal discrimination law system because sexual orientation is a ‘ground’ of unlawful discrimination under the Sex Discrimination Act (Cth) and the law applies to businesses of any size.