Recent amendments to the Sex Discrimination Act 1984 (Cth) (SDA) have now come into force. The amendments create new protections for gay, lesbian, bisexual, transgender and intersex people for the first time at the federal level.
What are the changes?
Anti-discrimination legislation in Australia operates at both federal and state levels, and prohibits unlawful discrimination in certain areas of life on specified grounds. The amendments to the SDA have broadened the grounds of unlawful discrimination to make discrimination on the grounds of a person’s sexual orientation, gender identity and/or intersex status unlawful. While anti-discrimination legislation in many states and territories included protections from discrimination on the grounds of sexual orientation or gender identity, the SDA now provides federal protections and introduces the new ground of intersex status.
The existing ground of ‘marital status’ in the SDA has also been broadened by the amendments to include ‘marital or relationship status’, which creates additional protections from discrimination for same-sex couples.
The amendments to the SDA have introduced new terminology that is intended to be more inclusive, including:
- ‘sexual orientation’ which refers to a person’s sexual orientation towards a person of the same sex or a different sex or both;
- ‘gender identity’ which refers to the gender-related identity, appearance, mannerisms or other gender-related characteristics of a person; and
- ‘intersex status’ which refers to the status of a person who has physical, hormonal or genetic features that are neither wholly male or female, a combination of male and female or neither male nor female.
Discrimination on the new grounds is unlawful in the same circumstances as for other grounds already covered by the SDA, including employment; education; provision of goods, services and facilities; provision of land, housing or accommodation; membership and activities of licensed clubs; and the administration of Commonwealth laws and programs.
What about existing SDA protections?
The amendments to the SDA do not affect the existing grounds of discrimination under the SDA, such as sex, pregnancy, potential pregnancy, breastfeeding and family responsibilities. However, the amendments do affect the protections against sexual harassment.
Under the SDA, it is unlawful to make an unwelcome sexual advance, unwelcome request for sexual favours or engage in other unwelcome conduct of a sexual nature in circumstances where a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.
When taking into account whether a person would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated, the SDA prescribes a non-exhaustive list of circumstances to be taken into account, including the sex, age and religious belief of the person harassed. The amendments to the SDA have broadened the circumstances to be taken into account so that a person’s sexual orientation, gender identity, intersex status and marital or relationship status will now also be considered as part of the ‘reasonable person’ test.
Are there any exemptions or exceptions?
The SDA includes a number of exemptions that mean that discrimination in certain circumstances will not be unlawful. The new grounds of discrimination in the SDA are limited by some specific exemptions, including exemptions for certain accommodation providers, charities, religious bodies (except for intersex status in religious educational institutions), voluntary bodies, sport (except for sexual orientation) and certain acts done under statutory authority. However, the exemptions for religious bodies do not extend to conduct connected with the provision of Commonwealth-funded aged care services. As a result, religious organisations that provide Commonwealth-funded aged care services will be subject to the discrimination provisions in the context of providing Commonwealth funded aged care services.
Lessons for employers
The new protections mean that employers have new responsibilities to prevent and respond to discrimination. Unless an employer can demonstrate they have taken all reasonable steps to prevent discrimination from occurring, they will be held vicariously liable for the actions of their employees or agents that occur in the workplace or in connection with their employment or duties.
Employers should familiarise themselves with the new SDA protections to ensure they are complying with their legislative obligations. In addition, employers should take steps to:
- review their policies and procedures for consistency with anti-discrimination legislation;
- provide managers and employees with regular training about anti-discrimination legislation, including the new federal grounds of discrimination;
- audit their processes for compliance with anti-discrimination legislation, including in relation to recruitment, terms and conditions of employment, and access to opportunities for promotion, transfer, training or other benefits; and
- ensure they have an effective internal grievance handling mechanism.