The Sex Discrimination Act 1984 (Cth) (SDA) prohibits discrimination on the basis of, amongst other things, sexual orientation. In the case of Bunning v Centacare [2015] FCCA 280 the court was asked to determine whether sexual behaviour was akin to sexual orientation and therefore protected by the SDA.

BACKGROUND

The Applicant, a family services coordinator, brought a discrimination claim against her employer, the Catholic Church-run community organisation Centacare, alleging she was dismissed because she was polyamorous. Polyamory is defined by the Macquarie Dictionary as "the mating pattern of having a number of sexual partners at the same time". Centacare, in response, said the Applicant's employment was terminated for gross misconduct. The allegation of gross misconduct stemmed from a discovery by Centacare that the Applicant had provided her contact details as a counsellor at Centacare, to the Brisbane Poly Group, who had then published the details on its website.

The Applicant lodged a complaint with the Australian Human Rights Commission (AHRC) stating she had been discriminated against because of her sex. The Applicant contended she was treated in a discriminatory manner due to her involvement and/or perceived involvement in the Brisbane Poly Group. The AHRC dismissed the complaint on the grounds that the complaint was misconceived.

The Applicant then filed a discrimination claim as well as a common law claim in the Federal Circuit Court (FCC) which alleged a failure by Centacare to provide reasonable notice of termination. Centacare sought summary dismissal of this application on the grounds it had no reasonable prospects of success.

FEDERAL CIRCUIT COURT

As the Applicant claimed she was unlawfully discriminated against by Centacare because of her sexual orientation, that is, because she was polyamorous, the question the FCC had to answer was whether polyamory was a sexual orientation for the purpose of the SDA.

The FCC found that sexual orientation under the SDA constituted "how one is rather than how one manifests that state of being."  The court held that how that state of being is manifested is what is known as sexual behaviour. Therefore, the FCC found that the Applicant's polyamory was a behaviour of her sexual orientation rather than her sexual orientation itself.

The court rejected the Applicant's argument that sexual behaviour was a sub-set of sexual orientation setting out that to find otherwise would lead to absurd results. The FCC held that if such a contention were correct, the illegal activities of paedophilia and necrophilia may have the protection of the SDA.

The FCC found that Centacare had not discriminated against the employee. In dismissing the Applicant's application, the Court was led to the inexorable conclusion that "sexual orientation", as the term is used in SDA,"covers only the state of being. It does not cover behaviours."

As a result of the discrimination claim being dismissed, the FCC's associated jurisdiction to hear the Applicant's common law claim did not exist. This meant that the FCC was unable to hear the Applicant's common law claim.

WHAT DOES THIS MEAN FOR YOU?

While the decision goes a long way to clarifying whether sexual behaviours constitute sexual orientation, the case highlights the myriad different applications employees can make if they are terminated from their employment.

Employers need to be mindful of the characteristics in the SDA so as to ensure they do not discriminate against an employee on one of the prohibited grounds.

It is important to remember that from 1 August 2013 it is unlawful to discriminate against a person on the basis of sexual orientation, gender identity and intersex status under the SDA. Same-sex couples are also protected from discrimination under the definition of 'marital or relationship status'. The Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill Act 2013 (Cth) amended the SDA to introduce these changes.

For a link to the full decision please click here.