Implications for employers

Employers should review their existing policies, procedures and training materials to ensure that they accurately reflect the amended Sex Discrimination Act 1984 (Cth) (Sex Discrimination Act), particularly the expanded definition of harassment and the new protections for breastfeeding.  Employers should also ensure that their employees are aware of these changes (and how these changes impact everyone in the workplace).

Background to the amendments

The Sex Discrimination Act was recently amended to strengthen existing protections against sex discrimination and sexual harassment.  These amendments took effect on 20 and 21 June 2011.

The amendments give effect to certain recommendations made by the Senate Legal and Constitutional Affairs Committee’s Inquiry into the effectiveness of the Sex Discrimination Act in eliminating discrimination and promoting gender equality.

Key amendments

The key amendments to the Sex Discrimination Act are as follows.

Breastfeeding

Breastfeeding is now included in the Sex Discrimination Act as a separate ground of discrimination (both direct and indirect discrimination).  “Breastfeeding” is defined to include the act of expressing milk and includes both a single act of breastfeeding and breastfeeding over a period of time.

An example of indirect discrimination on the ground of breastfeeding is provided under the Explanatory Memorandum (EM) to the amending legislation.  The example provided is where an employer imposes a requirement on all employees that they must not take any breaks for set periods during the day in any circumstances, which it notes would particularly disadvantage women who need to express milk.  However, the EM concedes that it may be reasonable in some circumstances for an employer to impose a requirement not to take breaks during certain periods, for example if it is a requirement of the job to operate dangerous machinery which cannot be left unintended.

Family responsibilities

The protection provided in respect of family responsibilities has been expanded under the Sex Discrimination Act.  It is now unlawful to discriminate against a person on the ground of family responsibilities in all areas of work.  Previously, it was only unlawful for an employer to discriminate against an employee on the ground of their family responsibilities by dismissing the employee. 

Originally it was proposed that the Sex Discrimination Act would be amended to prohibit both direct and indirect discrimination on ground of family responsibilities.  However, the amendment in respect of indirect discrimination was rejected by the Opposition in the Senate and the amendments were passed without the prohibition in respect of indirect discrimination.  Accordingly, the prohibition continues to be limited to direct discrimination.

Sexual harassment

The amendments to the Sex Discrimination Act have broadened the definition of “sexual harassment”.  The Act now provides that a person sexually harasses another person if the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, or engages in other unwelcome conduct in relation to the person harassed, in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated. 

The Sex Discrimination Act also now specifies a non-exhaustive list of “circumstances” to be taken into account for the purpose of assessing “all the circumstances” in the context of the “reasonable person” test above.  These are as follows:

  • the sex, age, marital status, sexual preference, religious belief, race, colour, or national or ethnic origin of the person harassed;
  • the relationship between the person harassed and the person who made the advance or request or who engaged in the conduct;
  • any disability of the person harassed;
  • any other relevant circumstance.

It is also now unlawful for a workplace participant (which includes an employer or employee, commission agent, contract worker or agent) to sexually harass another workplace participant at a place that is a workplace of either or both of those persons.  Previously, both workplace participants had to work at the same workplace.

Age Discrimination Commissioner

The amendments to the Sex Discrimination Act also create a new stand alone position of Age Discrimination Commissioner.