Discrimination in the workplace is fast becoming an area of concern and this was demonstrated by the general increase of 86.8% in complaints to the Australian Human Rights Commission in the last few years.
It is not just about race, gender, or religion. The Government has now introduced three (3) new attributes protected under the Fair Work Act 2009 (Cth).
Discrimination Increases its Reach
Discrimination in the workplace has led to copious amounts of discussion and case law namely on the following protected attributes:
- sexual orientation
- physical or mental disability
- marital status
- family or carer’s responsibilities
- political opinion
- national extraction
- social origin
Policies and procedures have developed by Employers to set out the standard of behaviour required. Fear of retaliation has been a legitimate concern for many employees and the Fair Work Act 2009 (Cth) along with Federal and State Discrimination laws have been established to enforce protections from direct and indirect discrimination where an employee believes they have been treated differently because of an attribute.
The new changes in place mean that three (3) more attributes have been added:
- intersex status
- gender identity
The Fair Work Act has been amended to include breastfeeding as a protected attribute.
Breastfeeding is the act of expressing milk and includes an act of breastfeeding and breastfeeding over a period of time.
This will almost certainly require employers to make reasonable adjustments to accommodate employees who need to breastfeed. This includes providing a private space for employees to express milk, and allowing for flexible work arrangements so that employees can care for their babies.
The more obvious direct discrimination could be an employee making a joke about someone breastfeeding or treating them differently (more menial work, lack of promotion opportunities) because the employee is breastfeeding.
The term ‘intersex’ describes a diverse group of people who, due to genetic, hormonal or anatomical characteristics, don’t fit typical definitions of male or female.
The Fair Work Act now expressly protects employees who are discriminated against because
the have biological attributes of both sexes or lack typical sex characteristics. For example, an intersex person may have:
- ambiguous genitalia
- gonads that don’t fit the typical definition of male or female (for example, ovotestes)
- chromosomal arrangements that don’t fit the typical definition of male or female (for example, XXY instead of XY)
- hormonal differences that don’t fit the typical definition of male or female (for example, high levels of testosterone in someone assigned female at birth)
- Anatomical differences that don’t fit the typical definition of male or female (for example, a person with a uterus and Fallopian tubes but no ovaries).
This is likely to be discriminatory in the workplace at the hiring stage or is exclusionary behaviour such as invitations (or the lack thereof) to social work events.
Gender identity is not the same as sex. Sex is the biological characteristics of a person, for example, the sex chromosomes that a person has, their hormones, and their reproductive organs. Gender identity is the gender that a person identifies with. It is important to remember that gender identity is different for everyone.
The new discrimination attributes protected in the Fair Work Act on the basis of gender identity is another additional attribute.
Direct discrimination may well be treating an employee differently because of their mannerisms or appearance because of their gender identity.
General Protections and Unfair Dismissal
The Fair Work Act 2009 (Cth) clearly sets out that it is unlawful to discriminate against a person because of their race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
Breastfeeding, intersex status and gender identity can now be added to those attributes.
If the discrimination involves dismissal then unfair dismissal and whether the dismissal is harsh, unjust or unreasonable will come into play. In those cases, reinstatement and up to 26 weeks worth of wages will be the legal risk.
The more obvious problem will be General Protections.
That is, when adverse action is taken against an employee because they exercise or propose to exercise a workplace right.
Discrimination in itself is a protection.
Some examples of the new attributes been utilised in a General Protections claim:
- An employee who is overtly overlooked for a promotion due to their intersex status
- A prospective employee’s gender identity has led to the employee not being offered employment with the employer
- A manager seeks to take disciplinary action against an employee who was breastfeeding her child on a Microsoft Teams meeting
General Protections has other problems including:
- The reverse onus of proof
- Damages and compensation
- Injunctive relief
- Rules of evidence come into play if the matter proceeds past the Fair Work Commission to a hearing in the Federal Circuit and Family Court of Australia
- The application can be filed whilst still employed as well as post employment
- Penalties can be imposed
A Court can impose penalties for these contraventions of up to:
- A maximum of $16,500 per contravention for an individual
- A maximum of $82,500 per contravention for a company.
What can Employers and HR do to mitigate liability and legal risk?
Employers should expect more claims in this space of discrimination under one of these new discrimination attributes – breastfeeding, intersex status, gender identity.
Many applications will likely proceed to a conciliation conference and be resolved at this stage however these changes now give direct access for employee representatives to access the Fair Work Commission.
There are defences to discrimination applications and they will usually rely upon whether there are “inherent requirements of the particular position concerned” and the adjustments to be made are unreasonable. Religious organisations also have a full defence enshrined in legislation.
There are a few key practical ways that employers and HR can mitigate liability and legal risk when it comes to discrimination:
- Understand the new protected attributes under the Fair Work Act.
- Ensure that workplace policies and procedures comply with anti-discrimination legislation and in particular the new attributes. This includes ensuring that there is no direct or indirect discrimination in any aspect of employment, from recruitment and selection through to termination of employment.
- Undertake management training for managers and leaders regarding their rights and responsibilities under anti-discrimination legislation and the new changes under the Fair Work Act. The NB Employment Law team are running specific management training programs to educate managers and decision-makers on the new changes. This will help to create a workplace culture where discrimination is not tolerated
- Investigate any complaints of discrimination promptly. This will help to demonstrate that the Employer takes allegations of discrimination seriously and is committed to addressing them appropriately.
Jonathan Mamaril leads a team of handpicked experts in the area of employment law who focus on educating clients to avoid headaches, provide advice on issues before they fester and when action needs to be taken and there is a problem mitigate risk and liability. With a core value of helping first and providing practical advice, Jonathan is a sought after advisor to a number of Employers and as a speaker for forums and seminars where his expertise is invaluable as a leader in this area as a lawyer for employers.
 Australian Human Rights Commission Annual Report 2021 – 2022 (https://humanrights.gov.au/our-work/commission-general/publications/annual-report-2021-2022#:~:text=Overall%2C%20we%20have%20experienced%20an,under%20the%20Disability%20Discrimination%20Act.)