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Industrial and Employment Law Alert: Discrimination law update – 31 October 2013

Amendments to the Sex Discrimination Act 1984 (Cth) provide new protections against discrimination on the basis of a person’s sexual orientation, gender identity, intersex status and relationship status…

From 1 August 2013, amendments to the Sex Discrimination Act 1984 (Cth) (SD Act), now make it unlawful for persons to discriminate against others on the grounds of:

  1. sexual orientation (previously described as ‘sexual preference’);
  2. gender identity; and
  3. intersex status.

The amendments also provide further protections by expanding the existing ground of ‘marital status’ to include ‘marital or relationship status’. This specifically now provides protection from discrimination for same-sex de facto couples under the SD Act.

The new grounds are in addition to the existing grounds of prohibiting discrimination on the basis of sex, pregnancy, breastfeeding, family responsibilities and marital status under the SD Act. Employers of course still need to be conscious of other federal and state legislation which operates in respect of other forms of discrimination such as age, race and disability.

What is discrimination on the grounds of ‘sexual orientation’, ‘gender identity’ and ‘intersex status’?

Employers need to consider and understand the meaning of the new grounds to ensure compliance with the amended legislation. The relevant terms, which are defined in detail in the SD Act, are:

  1. Sexual orientation – which means a person’s sexual orientation towards persons of either the same sex or a different sex. Common types of sexual orientation include heterosexuality, homosexuality, lesbianism and bisexuality.
  2. Gender identity – which means the gender‑related identity, appearance, characteristics or mannerisms or other gender‑related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth. Gender refers to the way a person presents and is recognised within the community. A trans or transgender person is someone who identifies as a gender that is different to their sex at birth.
  3. Intersex status – which means having physical, hormonal or genetic features that are neither wholly female nor wholly male; or a combination of female and male; or neither female nor male. Intersex people may have the biological attributes of both sexes or not have some of biological attributes to be defined as one or the other sex.

Is all discrimination on the basis of the new grounds unlawful?

No. Discrimination is essentially the impermissible or unreasonable differential treatment between persons or groups that results in a person or a group being treated less favourably than others, based on one or more of the prohibited grounds for discrimination.

The SD Act, like other anti-discrimination legislation, recognises that discrimination may be lawful and not unreasonable in certain situations. The SD Act provides a number of exemptions to the general prohibition against discrimination. For example, conduct will not amount to unlawful discrimination when:

  1. the duties of a position can be performed only by a person having particular physical attributes; or
  2. services can only be provided to a particular sex.

Employers need to be cautious that if they are treating a person differently because of a certain ground in the SD Act (ie, gender or intersex) they are doing so based upon one of the exemptions provided for in the SD Act.

What are the consequences of the Amendments for Employers?

In short, employers are now prohibited from unlawfully discriminating against someone, ie, a prospective or current employee, because of their sexual orientation, gender identity, intersex status or relationship status. Discrimination on these new grounds will be unlawful in the same circumstances as the existing grounds included in the SD Act. That is, persons must not discriminate on any of the listed grounds in certain “areas” ie, at work, in education, in the provision of goods, services and facilities and in the area of accommodation.

The changes mean that employees are now able to make a complaint, based on the new grounds, to the Australian Human Rights Commission. 

Broader consequences of the amendments – Fair Work Act

Lastly, under the Fair Work Act 2009 (Cth) (FW Act) an employer must not take ‘adverse action’ against an employee because the employee has a protected attribute.

Adverse action can mean dismissing, injuring, altering the position or discriminating against an employee or prospective employee, or threatening to take this action.

Protected attributes include, race, colour, sex, religion and from 1 August 2013, will also include sexual orientation, gender identity and intersex status.

A breach of the FW Act can allow employees to bring a general protections application in the Fair Work Commission and can expose the employer, and individuals involved, to various orders including uncapped damages and civil penalties of up to $51,000 for companies and $10,200 for individuals per breach.

What can employers do? 

Ideally employers should undertake a general review of all company documentation, policies and guidelines to ensure that they are applied in a non-discriminatory manner and consistent with the new grounds: sexual orientation, gender identity, intersex status and relationship status.

Employers should use inclusive and non-discriminatory terminology in their company documentation, policies and guidelines. For example:

  1. Don’t use narrow binary traditional descriptions of male and female when drafting documentation and instead use gender neutral descriptions wherever possible or alternatively allow people to identify with being intersex, transgender and gender diverse ie, it may be appropriate to introduce F (female), M (Male) and X (transgender and gender diverse) tick boxes in forms and documentation (or allow individuals to write or type in their gender themselves instead of providing tick boxes).
  2. Avoid using labels, such as homosexuality, lesbianism, bisexuality or heterosexuality, which some people may find offensive, and can often be inaccurate. Instead use the term ‘sexual orientation’ which is intended to encompass all these terms.

For more information on this topic and helpful guidance on this issue take a look at the ‘Australian Government Guidelines on the Recognition of Sex and Gender’, which can be found by clicking here.

Further Information

Please contact the Industrial and Employment Law team at HopgoodGanim if you would like any further advice regarding discrimination law.