Amendments to the Equal Opportunity Act 1984 (SA)(the Act) took effect in October 2009, bringing South Australian discrimination laws in line with other States.
Employees are now afforded greater protection under the Act, and have more scope to make claims against employers.
The new laws now make it unlawful to discriminate on the grounds of:
- caring responsibilities
- identity of spouse
- religious appearance or dress
- association with child.
There is also greater protection against discrimination for persons with a disability. “Disability” is now defined to include people with a mental illness, or people with learning difficulties.
Employees and secondary school students are now afforded more protection against sexual harassment. It is now unlawful for patrons or customers to sexually harass employees, and for students to sexually harass another student or employee of a school. All schools must also have a written policy against sexual harassment including a procedure for resolving disputes.
The new laws also impose stricter obligations on employers in dealing with sexual harassment. Employers who fail to take reasonable steps to stop harassment by one employee against another employee may now be liable under the Act.
Significantly, the Act now also applies to independent contractors, whereas previously it had applied to employees only. This includes contractors engaged through labour hire companies. The Act had previously covered employees of labour hire companies, but not contractors.
The amendments give the Commissioner for Equal Opportunity broader powers to decline to refer a complaint to the Equal Opportunity Tribunal where it is not resolved at the conciliation stage. This includes where there is no reasonable prospect of success, or if the complainant is unlikely to achieve a better result at the hearing than the offer made by the respondent at the conciliation conference.
For matters that are referred to the Tribunal, the Commissioner may provide funding for either the complainant or the respondent where either party lacks the capacity to represent themselves, or to provide their own representation.