A recent decision of the Federal Circuit Court of Australia has found that sexual behaviour is not protected by the prohibition of discrimination on the basis of ‘sexual orientation’ under the Sex Discrimination Act 1984 (Cth) (SD Act).

Susan Bunning brought a claim in the Federal Circuit Court alleging that she was dismissed from her employment with Centacare because she was polyamorous, arguing this was in breach of the SD Act. Centacare applied for summary dismissal of the claim on the basis that it was without reasonable prospects of success.

Background

Centacare is a Catholic not-for-profit organisation.

In August 2013, Ms Bunning was instantly dismissed from her employment as Coordinator of Family Support after six years of service. Ms Bunning’s dismissal followed Centacare’s discovery that she had posted her work contact details to the “Brisbane Poly Group” (BPG) website.  The BPG is a group for people interested in a polyamorous lifestyle.

Ms Bunning posted her contact details to BPG’s website in late 2011, in response to a request by a member for a “poly friendly counsellor”. During this time, Ms Bunning was employed by Centacare in a senior counsellor role.

Ms Bunning was issued with a letter of termination which cited “gross misconduct” as the reason for her dismissal.

Ms Bunning argued before Judge Vasta that she was dismissed from Centacare because she was polyamorous and that this constituted unlawful discrimination due to sexual orientation under the SD Act. Ms Bunning also sought damages on the basis she was entitled to reasonable notice of her dismissal.

In its defence, Centacare alleged that Ms Bunning grossly breached its Code of Conduct when she allowed her contact details to be published on the BPG’s website without its express authority to do so. It cited this breach as the reason for her dismissal.

Decision

The question to be answered in this matter was whether polyamory was a sexual orientation for the purposes of the SD Act. If not, there would be no jurisdiction for the Court to entertain the claim.

The SDA defines sexual orientation to be a person’s orientation towards:

  • persons of the same sex; or
  • persons of a different sex; or
  • persons of the same sex and persons of a different sex

Judge Vasta found that “under the Act, sexual orientation is how one is, rather than how one manifests that state of being. The manifestation of that state of being can take many forms. Those forms are what we know as sexual behaviour”.

His Honour went on to say that it was not possible to be polyamorous unless one engaged in polyamory and therefore polyamory is a ‘behaviour’ rather than a state of being. Accordingly, polyamory could not be considered a sexual orientation under the SD Act.

Ms Bunning contended that ‘behaviour’ is a subset of an orientation and therefore is covered by the definition of sexual orientation in the SD Act. However, his Honour outlined that if this argument was accepted then it could lead to an absurd result whereby the illegal activities of paedophilia and necrophilia have the protection of the SD Act. This was not the intention of the legislature, and sexual behaviour does not define an individual’s sexual orientation.

He concluded that in his view it could not be shown by Ms Bunning that there had been sexual discrimination as understood by the SD Act. Therefore, there was no reasonable prospect of success because there was no cause of action.

The matter was summarily dismissed and costs were ordered against Ms Bunning.

Impact of State Legislation

This matter may well have been decided differently had it been brought under State anti-discrimination legislation in Victoria or Tasmania. In these States, the relevant legislation makes it unlawful to discriminate against a person in relation to their employment on the ground of “lawful sexual activity”.

As such, while sexual behaviour may not be a protected attribute under the Commonwealth SD Act, employees in Victoria and Tasmania may still have recourse under State legislation.

Bottom Line for Employers

This decision provides useful guidance as to what sexual orientation means for the purposes of the SD Act, and it draws a clear distinction between this and sexual behaviour (which will not constitute a protected attribute on its own).

However, employers should be cautious of other types of action which may be open to employees who are dismissed for reasons including their sexual behaviour, in particular unfair dismissal. Employers in Victoria and Tasmania should be mindful that lawful sexual activity is protected under State based anti-discrimination legislation.