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Sex Discrimination Act Update

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By James Sanders, Lawyer, MST Lawyers

Amendments to the Sex Discrimination Act 1984 (Cth) which came into effect on 1 August 2013, now make it unfair to discriminate on the grounds of:

  1. Sexual Orientation (previously described as ‘sexual preference’) which includes a person’s sexual orientation towards a person of either the same or a different sex. Common types of sexual orientation include; heterosexuality, homosexuality, lesbianism and bisexuality.
  2. Gender Identity being the gender-related identity, appearance, characteristics or mannerisms or other gender related characteristics of a person, with or without regard to the person’s designated sex at birth; and
  3. Intersex Status including having physical, hormonal or genetic features that are neither wholly female nor wholly male, a combination of female and male or neither female nor male.

The amendments also expand the existing ground of ‘marital status’ to include ‘marital or relationship status’ allowing protection from discrimination for same-sex de facto couples.

The new grounds are in addition to the existing grounds which include, prohibiting discrimination on the basis of breastfeeding, family responsibilities, sex, pregnancy or marital status.

An employer who takes ‘adverse action’ against an employee because the employee has a protected attribute, having regard to any of the above grounds, will be at risk of an employee making a general protections claim. Adverse action includes dismissing, injuring, altering the position or discriminating against an employee or prospective employee.

The employer could also be fined for breaching the Fair Work Act 2009 (Cth) resulting in a civil penalty of $51,000 for companies and $10,200 for individuals per breach.

What do employers need to do?

Employers need to review all template employee documentation to ensure that they do not conflict with the above attributes or any other employee rights.

Documents that must be reviewed include, but are not limited to:

  • Letters of offer;
  • Employment contracts;
  • Grievance procedures;
  • Performance management procedures;
  • Employee handbooks;
  • Bullying policies;
  • Gender equality policies; and
  • All other company policies.

For further information, please contact our Workplace Relations team on (03) 8540 0200 or email admin@mst.com.au.