Sexual Orientation Discrimination
It's unlawful to discriminate against, treat unfavourably or treat differently any employee or prospective employee based on their sexual orientation, gender identity, and intersex status.
The Sex Discrimination Act 1984 (Cth) makes it unlawful to discriminate against an employee or prospective employee because of their sexual orientation, gender identity or intersex status (ss 5A-5C, 14).
Section 351 of the Fair Work Act 2009 (Cth) protects employees from adverse action because of sexual orientation and, since 7 December 2022, gender identity and intersex status.
The WA Equal Opportunity Act 1984 (WA) covers sexual orientation (Part IIB). Its gender history ground (Part IIAA) is narrower: it protects a person who meets the Act's definition of a gender reassigned person. For gender identity more broadly, the Commonwealth Act is usually the better fit.
What Is Sexual Orientation, Gender Identity And Intersex Status?
A person's sexual orientation includes a person's emotional, mental, and physical attraction to persons of the same sex, to members of a different sex or to members of both sexes.
Gender identity is a person's subjective sense of his or her own gender that includes how they express their gender through actions, gestures, dress, demeanour, or behaviour.
Intersex status involves people who were born with physical, hormonal or genetic features that are not exclusively female or male. It is a different thing from gender identity, which covers people who are transitioning or have transitioned.
How Do Employers Discriminate Against Employees Or Prospective Employees Based On Their Sexual Orientation?
Treating differently or treating unfavourably
Employers discriminate against employees or prospective employees when they treat differently or treat unfavourably from others, those whose sexual orientation, gender identity or intersex status does not coincide with the employer's ideas or views of "masculinity" or "femininity" even when the prospective employees or employees have substantially similar qualifications or they render substantially similar work or service as other applicants or employees.
Imposing rules that affect adversely employees due to their sexual orientation
This discrimination may also include instances when employers impose or propose to impose rules, conditions, requirements, policies, or procedures that treat all employees similarly but when these are implemented, they result in a disadvantage to persons of same sex, bisexual, or heterosexual orientation.
Refusing to hire or refusing to offer work because of the sexual orientation of a prospective employee
Discrimination may occur in the recruitment and selection process but it may also occur in the offer of terms and conditions of work, or in selecting employees for training, promotion, transfer, or dismissal due to redundancy.
Making jokes, comments, or derogatory statements
Discrimination may also occur at work when managers, supervisors or co-employees make comments, jokes or derogatory statements about other people's sexual orientation, gender identity, biological attributes, appearance or behaviour.
Who Can I Sue For The Acts Of Discrimination?
You can complain about the person who discriminated against or harassed you, and about your employer.
An employer is liable for discrimination and harassment by its employees and agents in connection with their work unless it establishes that it took all reasonable steps to prevent it (s 106 of the Sex Discrimination Act; s 161 of the Equal Opportunity Act). People who cause, instruct, induce, aid or permit unlawful discrimination can also be liable (s 160 of the Equal Opportunity Act).
Some conduct raises other claims too. Spreading false statements about someone's sexuality or sex life at work, for example, has been the subject of defamation proceedings as well as discrimination complaints. We can tell you which claims are open on your facts.
What Legal Action Can I Take If I've Been Discriminated Against Because Of Sexual Orientation?
You usually have three routes. In most cases you can use only one of them for the same conduct.
1. General protections (Fair Work Act). For employees of national system employers; the employer must prove the attribute was not a reason (s 361). If you were dismissed, lodge with the Fair Work Commission within 21 days.
2. The Australian Human Rights Commission (Sex Discrimination Act). Covers sexual orientation, gender identity and intersex status, for employees, contractors and job applicants. The Commission may end a complaint lodged more than 24 months after the conduct; you then have 60 days from the termination notice to go to court.
3. The WA Equal Opportunity Commission (Equal Opportunity Act). Lodge within 12 months. Damages are capped at $40,000.
If you work for the WA public sector, a WA council or a business that is not a company, you can bring an unlawful termination claim within 21 days if you were dismissed. Compare the routes on our page on where to make a discrimination complaint.
We At MKI Legal Can Help
If you feel discriminated against at work and you wish to discuss your circumstances and legal options, you can contact us for a free, confidential and no-obligation initial telephone discussion.