The Sex Discrimination Act 1984 makes it unlawful to discriminate against, treat unfavourably or treat differently any employee or prospective employee based on their sexual orientation, gender identity, and intersex status.
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 reproductive organs, genitalia or chromosomes that may not be exclusively female or male, or may have facial or body features that may not be traditionally male or traditionally female. It also includes biological males or females transitioning into the gender they subjectively identify with.
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 do 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.
In Kelly v Moore and GJ & AM Moore Pty Ltd ( QADT 20 (17 November 2009) a casual employee at a motel and caravan park who was openly homosexual was frequently asked by the Company Director about his sexual habits and the identity of his sexual partners. Since non-homosexual employees were not frequently interrogated regarding their sexual habits or the identity of their sexual partners, this was ruled as discriminatory. The homosexual employee was awarded compensation.
In Bryce v City Hall Albury Wodonga Pty Ltd T/as City Hall Hotel (15 July 2004), a 19-year old employee reported for work and found the manager and two other officers of the hotel, drinking at the sports bar of the hotel. The manager called him over and invited him to play the “you and me game”. The manager also asked him “What do you think of my friends? They’re pretty cute, aren’t they?” The manager referred to the two male officers at the bar with the Manager at that time. The employee left the bar and the manager told all the other co-workers present then, “Mark likes boys.” The employee never went back to work.
The court awarded him lost wages, and $6000 in general damages. The employee was homosexual and he was singled out from all other employees. Other employees who were not homosexual were not subjected to similar behaviour by the manager and his sexual orientation was made an object of ridicule.
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, procedures, or policies that treat all employees similarly but when these are implemented, they result in a disadvantage to persons of same sex, bisexual, or heterosexual orientation.
In one case, the employer imposed a policy that blocked all emails that contained words identified as “profanities”. The word “lesbian” was included in the list. Thus, the emails sent to the complaining employee were blocked. She complained internally that inclusion of the word “lesbian” in the list was offensive and it discriminated against lesbians. This complaint lodged with the Australian Human Rights Commission was resolved through conciliation. The employer removed the word “lesbian” from the list of blocked words and provided the employee with a letter of apology.
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.
In Farmer v Dorena Pty Ltd ( NSWADT 81 (17 May 2002), the manager of a recruitment company accepted the curriculum vitae and references of a transgender applicant but refused to put forward the application for positions for which the transgender job applicant was clearly qualified to apply. When the job applicant asked about one position, the manager told the transgender that the prospective employer wanted women who had kids who would work part-time and for flexible hours. The court awarded the transgender woma compensation.
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.
In Lulham v. Hanahan, Watkins Steel and others ( QADT 11 (5 August 2003) an apprentice boilerplate maker was repeatedly asked by his co-workers about his sexual orientation. He was teased and taunted repeatedly about frequenting gay bars and having sex with minor children. His co-workers and employer were made to pay damages amounting to $26,000 for lost wages, hurt and humiliation and for litigation costs.
Who can I sue for the acts of discrimination?
An employee or prospective employee who suffered discrimination may sue the company as well as the person who committed the discriminatory acts. The employer will be vicarious liability if it fails to take reasonable steps to protect its employees from discrimination.
In Tassone v Kirkham ( SADC 134 (7 August 2014), a corrections officer found the email account of a co-worker on a shared computer. He accessed the email account and sent an email message using his co-worker’s email account to all the contacts on the co-worker’s address book. He did this without the email account owner’s consent or knowledge. The email read: “I am a homosexual and I am looking for like-minded people to share time with.” The corrections officer hacked the account of his co-worker as a prank. However, the email was sent to people outside of the office, to other government agencies with whom the co-worker regularly corresponded.
The owner of the email account sued the Corrections Services and the corrections officer. The court found that email defamed the owner of the email account. The discrimination and defamation was not committed by making it seem that the email account owner was confessing to be a homosexual but because the email made it seem that the email account owner was sexually promiscuous and that he was soliciting sexual relationships with people he did not know.
The email account owner was awarded $100,000 for non-economic loss, medical expenses, and loss of wages. The corrections officer who hacked the email account and sent the offensive email was dismissed from employment.
What legal action can I take if I’ve been discriminated because of sexual orientation?
You can file a general protections claim under the Fair Work Act 2009 if you are covered by the federal law system and you have been discriminated in your employment. Alternatively, if you are not covered by the Federal law system you can lodge an unlawful termination claim under the Fair Work Act 2009.
You can alternatively lodge a claim with the Australian Human Rights Commission.
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.