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Don’t discriminate: What you need to know about discrimination and equal opportunity laws

Discrimination and equal opportunity laws apply in all parts of Australia, putting the onus on employers to make their workplaces free of discrimination, including sexual harassment. How up to date are you on amendments made to the legislation last year? Here’s what you need to know.

Amendments made to the Age Discrimination Act 1994 last year include the appointment of an Age Discrimination Commissioner within the Australian Human Rights Commission to address issues facing mature aged workers.

The definition of sexual harassment has also changed, providing that a reasonable person need only anticipate the possibility of the harassed person being offended, humiliated or intimidated by the conduct in question. Previously, the definition required a reasonable person to anticipate the harassed person would be offended, humiliated or intimidated by the conduct. The new definition is the third element of the legal test for sexual harassment, which also specify that the behaviour must be unwelcome and of a sexual nature.

Sexual harassment is considered to be a form of unlawful discrimination and can take various forms including:

  • Unwelcome touching, hugging or kissing,
  • Suggestive comments or jokes,
  • Intrusive questions about an employee’s private life or body,
  • Sexually explicit emails or SMS messages,
  • Accessing sexually explicit internet sites
  • Behaviour which would also be an offence under the criminal law, such as physical assault, indecent exposure, sexual assault, stalking or obscene communications.

Extended protections against sexual harassment make it unlawful for a person to sexually harass someone in the course of seeking, or receiving goods, services or facilities. This includes sexual harassment by customers against staff of a vendor.

The wide protection for employees may result in more claims of sexual harassment or sex discrimination made to the Australian Human Rights Commission. Where claims are unsuccessful under the Australian Human Rights Commission, employees can then make claims for damages for adverse action under the Fair Work Act 2009.

Employers should take a pro-active approach and ensure the workplace has a policy on harassment and equal opportunity. If a complaint is made, an investigation must take place and appropriately disciplinary action implemented, which should be outlined in the policy.

Workplace policies provide employees with a clear indication of what is expected of them and what they can expect from their employer. Policies can also fulfil certain obligations, such as providing an onus on employers to make their workplace free from discrimination under Equal Employment Opportunity and Sex Discrimination laws.

Amendments broaden protection for both men and women from being discriminated against in all areas of employment on the basis they have family responsibilities. Previously cover would only extend to discrimination being prohibited in the area of termination only. Breastfeeding is now protected as a separate ground of discrimination that includes both the act of expressing milk and individual acts of breastfeeding. Under the Sex Discrimination Act it is prohibited to discriminate against a person who is breastfeeding at work or in the public domain.

Policies, training and procedures won’t eliminate sexual harassment in the workplace, but employers should take all reasonable steps to ensure it doesn’t happen. Now is the time to review workplace policies to ensure they include the recent amendments and communicate them to all staff.

This article was written by the team at Wentworth Advantage, and originally appeared in Giftrap magazine, the Australian Gift and Homeware Association’s member magazine.

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