This type of discrimination occurs where a person is treated unfavourably because the person is homosexual, heterosexual, bisexual or of a chosen gender, or because of characteristics that they are assumed to have because of their sexuality. For example, it is discrimination to refuse to hire a worker because he or she is bisexual. It would also be discrimination for a relationship-preparation course to exclude homosexual couples because it is assumed that their relationships are not enduring.
Chosen gender refers to a person’s adopting the characteristics of the sex opposite to their biological sex (sometimes called transgender) and also includes people who have an intersex condition and decide to live as a member of one or the other sex. It is discrimination to treat these people unfavourably because of the gender that they have adopted as their own. It is also discrimination for an employer to require them to dress as a member of the sex with which they do not identify.
Legislation:
Areas of discrimination on basis of sexuality or chosen gender under SA law
Under the Equal Opportunity Act 1984 (SA) it is illegal to discriminate on the basis of sexuality or chosen gender in the following areas:
Exemptions
Areas of discrimination on basis of sexual preference under Commonwealth law
Australian Human Rights Commission
The Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013 introduced changes to the Sex Discrimination Act 1984 (Cth) to enable the Australian Human Rights Commission to investigate and resolve complaints of discrimination, harassment and bullying based on a person’s gender identity and intersex status, relating to conduct that occurred after 1 August 2013. (The Commission can also receive complaints on this basis for conduct that occurred prior to 1 August 2013, however can only take the matters to the Conciliation stage and write a report to the Attorney-General).
There is a temporary exemption under these provisions (until 31 July 2014) for conduct that would otherwise be discrimination on the grounds of sexual orientation, gender identity or intersex status if the conduct is in direct compliance with a Commonwealth, State or Territory law prescribed by regulations.
Making a complaint
Complaints can be made to the Australian Human Rights Commission or the Equal Opportunity Commission. There is no cost to lodge a complaint in either the Equal Opportunity Commission of South Australia or the Australian Human Rights Commission. For forms and guides on making a complaint see the websites of the Equal Opportunity Commission and the Australian Human Rights Commission.
The Fair Work Commission can hear claims of discrimination in work on the ground of sexual preference, under the Fair Work Act 2009 (Cth) s 351 [see the Employment chapter for information about this general protection under that Act]. See also the Fair Work Commission's guide to general protection applications.
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Time limit: The Australian Human Rights Commissioner may decide not to take any action for complaints on acts committed more than 6 months previously. The Equal Opportunity Commission normally requires a complaint to be made within 12 months of the event being complained of but can grant extensions of time. General Protections claims relating to dismissal have a 21 day time limit (from the date of notice of dismissal) in the Fair Work Commission. |
Mike and Greg lived together in an Adelaide suburb. Their property was assessed by the local council for installation of a new driveway. When the worker arrived to do the work he made derogatory comments about Mike and Greg's sexuality after seeing them together in the house. Some of the comments that he made were, 'You gays don't deserve to have this work done ... I will make you wait', and 'I know people who will bash you up'. The worker then refused to finish the work promised. Mike and Greg were angry and felt humiliated by these remarks.
Mike and Greg complained to the local council but were told that the worker was an independent contractor and not the council's responsibility. Mike and Greg then made a complaint to the Equal Opportunity Commission.
Outcome: At conciliation the Council agreed to provide all contract workers with written information about their responsibilities regarding discrimination, that all people requesting a copy of council policy will receive one free of charge and made a commitment to ensure that their staff were aware of their discrimination policy. A payment of $500 each was made to Mike and Greg for injury to feeling.
Legislation
What is sexual harassment?
Sexual harassment includes unwelcome conduct of a sexual nature that a reasonable person would find offensive, humiliating or intimidating. The conduct can be spoken or written words, pictures or actions.
Common examples include:
This behaviour is unlawful because it is a form of bullying or intimidation that affects a person’s ability to participate in public life.
The test under the Equal Opportunity Act used to determine whether behaviour is sexual harassment is whether a reasonable person would have expected that the other person would be offended, humiliated or intimidated by the behaviour. Behaviour that most people would regard as inoffensive will not amount to sexual harassment just because the recipient feels offended by it. Conversely, behaviour that most people would regard as offensive will not be lawful just because the person who did it thought that no-one would mind. It does not matter whether or not the person intended to give offence.
The test to decide if behaviour amounts to sexual harrassment under the Commonwealth Sex Discrimination Act is broader than the South Australian test. The Commonwealth test is whether a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated. Circumstances to be considered include:
As with discrimination laws, sexual harassment laws are concerned with participation in public life and not with conduct in private life. Unwanted sexual behaviour in private life may amount to sexual assault or stalking and, if so, could be reported to the police, but it is not covered by sexual harassment laws.
Sexual harassment is unlawful:
The coverage of Commonwealth and State law varies and you should seek advice on this in deciding whether to complain to the Equal Opportunity Commission or the Australian Human Rights Commission.
Under both Commonwealth and State law, employers will be legally responsible for sexual harassment in their workplaces unless they can show that they have taken reasonable steps to prevent it. In South Australian law, an employer can be responsible for harassment by a third party who visits the workplace, if it had been reported and the employer did not take reasonable action to stop it recurring.
Making a complaint
Complaints can be made to the Australian Human Rights Commission or the Equal Opportunity Commission. There is no cost to lodge a complaint in either the Equal Opportunity Commission of South Australia or the Australian Human Rights Commission. For forms and guides on making a complaint see the websites of the Equal Opportunity Commission and the Australian Human Rights Commission.
Sexual harassment in the workplace can also be classed as workplace bullying and be dealt with by either SafeWork SA or the Fair Work Commission - see further the Employment chapter on Bullying.
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Time limits: The Australian Human Rights Commissioner may decide not to take any action for complaints on acts committed more than 6 months previously. The Equal Opportunity Commission normally requires a complaint to be made within 12 months of the event being complained of but can grant extensions of time. |
Ms D'Andrea accepted contract work as a photographer for a local photography studio. On her second day at the studio, Ms D'Andrea was asked by her employer (Mr Jaye) if she would like to go interstate with him. When she asked if the trip was work related, Mr Jaye said, "It could be".
Ms D'Andrea made a sexual harassment and sex discrimination complaint against Mr Jaye, claiming that he:
A conciliation conference between the parties was held, but settlement negotiations broke down when Mr Jaye did not respond to contact from the Commission.
The matter was then referred to the Tribunal.
Mr Jaye did not appear at the Tribunal.
The Tribunal found that Ms D’Andrea was entitled to a total of $22,000 compensation, which included lost wages and $10,00 for stress and humiliation caused by the harassment.