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Industrial Relations and Employment Alert: Stronger anti-discrimination legislation takes effect - 29 June 2011

Employers need to familiarise themselves with recent changes to the Sex Discrimination Act, as increased protection now provided by federal law could result in more claims of sexual harassment or sex discrimination within workplaces.

Here, Partner Andrew Tobin looks at the changes and highlights key aspects of which employers need to be aware.

Among the changes is a lowering of the standard in the federal jurisdiction for what constitutes sexual harassment and also protection of employees from sexual harassment in a wider range of workplace contexts. These additional protections place new obligations on employers to take all reasonable steps necessary to protect their staff from discrimination and harassment.

Key changes for employers

Employers should be aware that changes made to the Sex Discrimination Act mean that:

  • The test for sexual harassment has been lowered, so that conduct will be sexual harassment if a reasonable person would anticipate 'the possibility' that the person would be offended, humiliated or intimidated;
  • Employers are obliged to protect their employees from sexual harassment in a broader range of workplace contexts, including by customers, clients and colleagues at other organisations;
  • The protection from direct discrimination on the ground of family responsibilities has been extended to men and women in all areas of employment, not just in relation to the termination of their employment;
  • Breastfeeding has been established as a separate ground of discrimination; and
  • The protections of the Sex Discrimination Act have been extended to apply equally to men and women.

The increased protection now provided under the Sex Discrimination Act could result in more claims of sexual harassment or sex discrimination being made to the Australian Human Rights Commission, rather than to State-based anti-discrimination regulators.

Employees whose claims cannot be resolved by the Australian Human Rights Commission can elect to make a claim in the Federal Court or the Federal Magistrates Court. Employees who do so could make, in addition to a claim of sexual harassment or sex discrimination, a variety of other claims they might have in relation to their employment.

This could include claims for damages (and in some cases, for civil penalties) for adverse action under the Fair Work Act, for misleading and deceptive conduct under the Competition and Consumer Act and for breach of employment contract. Claims of this nature cannot be made in connection with a sexual harassment or sex discrimination claims made under State anti-discrimination laws.

A new test for sexual harassment

Previously in the federal jurisdiction, sexual harassment occurred if a reasonable person would anticipate that the person harassed "would be" offended, humiliated or intimidated.

Now, a reasonable person only needs to anticipate "the possibility" that the person harassed would be offended, humiliated or intimidated for sexual harassment to occur.

A list of non-exhaustive circumstances to be considered in assessing whether a reasonable person would anticipate the possibility that a person would be offended, humiliated or intimidated has been included in the Sex Discrimination Act.

These circumstances include the:

  • sex, marital status, age, race, sexual preference and ethnicity of the person complaining of harassment;
  • any disability of the person harassed;
  • nature of the relationship between the parties.

Increased protection from sexual harassment in the workplace

The Sex Discrimination Act prohibits sexual harassment at the workplace by "workplace participants". This now includes not only employees but also contract workers and commission agents.

It is now also unlawful for a person to sexually harass another "in the course of seeking or receiving goods, services or facilities from another person". For the first time in the federal jurisdiction, this protects workers from sexual harassment by customers, clients or colleagues at other organisations with whom they interact through work.

Changes have also been made to ensure harassment or discrimination undertaken using a "postal, telegraphic, telephonic or other like service" come within the protection of the Sex Discrimination Act. This change is designed to ensure protection from harassment or discrimination by way of technologies such as email, SMS, mobile-phone cameras and social networking sites.

Discrimination on the ground of family responsibilities

Previously, a claim of sex discrimination under the federal Act on the grounds of family responsibilities was available only where an employee was terminated. Now, both men and women are protected from direct sex discrimination on the basis of their family responsibilities in all areas of work.

Amendments that were initially proposed to extend this protection to instances of indirect discrimination were not adopted. This means that a claim of indirect discrimination on the basis of family responsibilities will only be available under State anti-discrimination laws.

New protection for breastfeeding

The Sex Discrimination Act only used to protect women against discrimination on the basis of breastfeeding indirectly, via a claim of sex discrimination. Now, breastfeeding is protected as a separate and distinct ground of discrimination.

The amendments also ensure that special measures are taken to accommodate the needs of breastfeeding women in the workplace and other areas of public life.

As these changes may impact many employers across Australia in a variety of ways, HopgoodGanim encourages employers to seek legal advice on any aspect of interest. Please feel free to contact the HopgoodGanim Industrial Relations and Employment Law Team should you have any questions about this Act or in relation to equal opportunity and human rights matters generally.