Employers warned about new sex discrimination laws

Analysis

Employers warned about new sex discrimination laws

Employers will leave themselves vulnerable to a growing number of sexual harassment and sexual discrimination claims unless they familiarise themselves with recent legal changes that provide employees with broader workplace protections, a lawyer warns.

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Employers will leave themselves vulnerable to a growing number of sexual harassment and sexual discrimination claims unless they familiarise themselves with recent legal changes that provide employees with broader workplace protections, a lawyer warns.

According to an IR and employment paper (written by HopgoodGanim associate Rebekah Foster), amendments to the Cwlth Sex Discrimination Act 1984, which took effect on 20 June, lower the standard for what constitutes sexual harassment and also provide protection for employees from sexual harassment in a wider range of workplace contexts.

She explains that these additional protections could result in more claims of sexual harassment or sex discrimination being made to the Australian Human Rights Commission rather than to state-based anti-discrimination regulators.

‘Employees whose claims cannot be resolved by the Australian Human Rights Commission can elect to make a claim in the Federal Court or the Federal Magistrates Court,’ she says.

‘Employees who do so could make, in addition to a claim of sexual harassment or sex discrimination, a variety of other claims they might have in relation to their employment.’

‘This could include claims for damages (and in some cases, for civil penalties) for adverse action under the Fair Work Act, for misleading and deceptive conduct under the Competition and Consumer Act and for breach of employment contract.’

Key changes
 
Foster advises employers that the changes place new obligations on employers to take all reasonable steps necessary to protect their staff from discrimination and harassment.

Below is a summary of the key changes that Foster says employers need to be aware of:
A new test for sexual harassment
 
Previously, sexual harassment occurred if a reasonable person would anticipate that the person harassed ‘would be’ offended, humiliated or intimidated.

Now, a reasonable person only needs to anticipate ‘the possibility’ that the person harassed would be offended, humiliated or intimidated and must consider the circumstances of the person complaining of harassment, including — but not limited to — their sex, marital status, age, race, sexual preference, ethnicity, any disability they may have, and the nature of the relationship between the parties.

Increased protection from sexual harassment in the workplace
 
The Act prohibits sexual harassment at the workplace by ’workplace participants’, a term that now includes not only employees but also contract workers and commission agents.

It is now also unlawful for a person to sexually harass another ‘in the course of seeking or receiving goods, services or facilities from another person’ — this protects workers from sexual harassment by customers, clients or colleagues at other organisations with whom they interact.

In addition, changes also ensure workers are protected from harassment and discrimination by way of technologies such as email, SMS, mobile-phone cameras and social networking sites.

Discrimination on the ground of family responsibilities
 
Previously, a claim of sex discrimination on the grounds of family responsibilities was available only where an employee was terminated. Now, both men and women are protected from direct sex discrimination on the basis of their family responsibilities in all areas of work.

Claims of indirect discrimination on the basis of family responsibilities are still only available under state anti-discrimination laws.

New protection for breastfeeding
 
Whereas, previously, the Act only protected women against discrimination on the basis of breastfeeding indirectly (via a claim of sex discrimination), breastfeeding is now protected as a separate and distinct ground of discrimination.

Changes also ensure that special measures are taken to accommodate breastfeeding requirements in the workplace and elsewhere.
Disclaimer
 
HopgoodGanim Lawyers attached the following disclaimer to Foster’s paper:
‘The contents of this paper are not intended to be a complete statement of the law on any subject and should not be used as a substitute for legal advice in specific fact situations. HopgoodGanim cannot accept any liability or responsibility for loss occurring as a result of anyone acting or refraining from acting in reliance on any material contained in this paper.’
 
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