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Client Update: Anti-discrimination laws strengthened

27 May 2011

In brief: Employers need to familiarise themselves with important legislative amendments to anti-discrimination laws that are likely to come into effect in July 2011. In particular, the standard for what constitutes sexual harassment has been lowered, and employers now have an obligation to protect employees from sexual harassment in a broader range of workplace contexts. Partner Peter Arthur (view CV), Lawyer Tristan Garcia and Law Graduate Edwina Watson report on the changes and what they mean for employers.

How does it affect you?

Employers should be aware that as a result of the amendments to Sex Discrimination Act 1984 (Cth) (the Act):

  • the standard for what constitutes sexual harassment has been lowered, so that conduct will be sexual harassment if a reasonable person would have anticipated 'the possibility' that the person would be offended, humiliated or intimidated;
  • an employer has an obligation to protect its employees from sexual harassment in a broader range of workplace contexts, including from harassment by customers, clients and people employed by other organisations;
  • protection from discrimination on the ground of family responsibilities has been extended to cover women and men in all areas of work, not just in relation to the termination of their employment;
  • discrimination on the grounds of breastfeeding has been established as a stand-alone ground of discrimination; and
  • the protections of the Act have been extended to apply equally to both men and women.

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Background

The Sex and Age Discrimination Legislation Amendment Bill 2010 (Cth) was passed by Federal Parliament on 24 May 2011.

The Bill was introduced by the Government in September 2010, in order to implement the recommendations of the Senate Standing Committee on Legal and Constitutional Affairs' 2008 Report on the effectiveness of the Act in eliminating discrimination and promoting gender equality.

The amendments are intended to address areas of community concern by strengthening protections for individuals in the workplace and in other areas of public life.

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The amendments

Clearer test for sexual harassment

The amendments clarify the way in which sexual harassment is defined under the Act. Under the existing provisions, sexual harassment is taken to have occurred if a reasonable person 'would have anticipated' that the person being harassed would be offended, humiliated or intimidated by the unwelcome sexual conduct. The revised definition provides that a reasonable person need only anticipate 'the possibility' that the subject of the harassment would be offended, humiliated or intimidated in order for the conduct to contravene the Act.

Discrimination on the ground of family responsibilities

Discrimination on the grounds of a person's family responsibilities is currently limited to situations in which a person suffers discrimination through the termination of their employment. The new provisions will extend the scope of this protection by explicitly prohibiting direct discrimination on the basis of family responsibilities for both men and women in all areas of employment.

Earlier proposed amendments extending this protection to instances of indirect discrimination were ultimately not adopted, as a result of Parliamentary opposition. As a result, federal anti-discrimination laws will continue to differ from similar protections for family responsibilities available at a state and territory level.

A specific protection for breastfeeding

Under existing provisions of the Act, women who had been discriminated against in relation to breastfeeding were only afforded indirect protection. By contrast, the new amendments establish breastfeeding as a distinct protected attribute and as a separate ground of discrimination. The amendments also ensure that special measures must be taken to accommodate the needs of breastfeeding women in the workplace and elsewhere.

Broader protections for employees and students against sexual harassment

For the first time in federal anti-discrimination law, the Act now ensures that employees are protected from sexual harassment by customers, clients and people employed by other organisations. This places new obligations on employers to take all reasonable steps necessary to protect their staff.

In addition, the prohibition on sexual harassment of students has been broadened to protect students of any age from sexual harassment by other students and staff members, including from educational institutions other than their own.

A new Federal Age Discrimination Commissioner

The amendments to the Age Discrimination Act 2004 (Cth) also establish the position of Age Discrimination Commissioner in the Australian Human Rights Commission. The Commissioner will be responsible for tackling age discrimination, and raising awareness among employers about the contributions made by both senior and younger employees in the workforce.

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Conclusion

Following on from the lessons of the David Jones litigation, these legislative changes will further increase the level of attention that employers are expected to give to discrimination issues in their workplace.

For further information, please contact:

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