The Federal Circuit Court has rejected an employee’s claim that her employer engaged in unlawful discrimination by terminating her employment due to her “polyamorous” lifestyle. The Court found that polyamory was not a matter of sexual orientation and so was not a protected attribute under the relevant legislation.
The Applicant was employed as a counsellor by a social welfare agency connected with the Roman Catholic Church.
The Applicant caused her name and her work contact details (including the name of the employer) to be published on the web-site of a support group for people who pursue polyamorous lifestyles.
In the subsequent litigation it was accepted that polyamory, or a polyamorous lifestyle, involves having multiple concurrent sexual partners.
The employer discovered the manner in which the contact details were published and terminated the Applicant’s employment for gross misconduct.
The Applicant brought proceedings in the Federal Circuit Court under the Sex Discrimination Act 1984 (Cth) (the Act).
Among other things, the Act makes it unlawful for an employer to treat an employee less favourably because of the employee’s sexual orientation than it would treat another employee with a different sexual orientation in the same circumstances.
The Applicant claimed that she was polyamorous and that this represented a sexual orientation for the purposes of the Act. The Applicant contended that the employer, by terminating the employment, had treated her less favourably than it would have treated an employee of a different sexual orientation in the same circumstances.
The employer applied to the Court for summary judgment on the basis that the claim had no reasonable prospects of success because polyamory was not a sexual orientation for the purposes of the Act.
The judge (Judge Vasta) found that polyamory was a matter of behaviour – a person was polyamorous to the extent that he/she engaged in conduct relating to multiple sexual partners. The statutory definition of sexual orientation, on the other hand, focused on a state of being (being attracted towards members of a particular – or all – sexes) and not forms of behaviour.
In response to the Applicant’s argument that behaviour was a subset of orientation, the judge said:
“If the contention of the Applicant were correct, many people whose sexual activity might label them as sado-masochists, coprophiliacs or urophiliacs could claim that such is more than mere behaviour; it is in fact their very sexual orientation. If the contention were correct, then the illegal activities of paedophilia and necrophilia may have the protection of the Sex Discrimination Act 1984 (Cth). Such a result is an absurdity.”
Therefore, polyamory was not a sexual orientation and the Applicant’s claim had no prospects of success. The proceedings were dismissed. A copy of the decision can be found here.
The case illustrates the limitations of anti-discrimination laws. Such laws exist to provide relief to people who have been treated less favourably because they possess a defined attribute, not because they have been treated in a generally “unfair” way.
The adjudication of claims relies fundamentally on a comparison between the claimant who has the attribute and a hypothetical person in the same situation who does not. Consequently, the focus is on particular states of being. Unless a claimant comes within one of the demarcated “pigeon holes”, his/her claim is doomed.