What is changing?
In late May 2011, Federal Parliament enacted the Sex and Age Discrimination Legislation Amendment Act 2011 (the Act). Operative from 20 June 2011, the Act makes amendments to the Sex Discrimination Act 1984 and the Age Discrimination Act 2004.
The legislation was introduced in response to an inquiry by the Senate Standing Committee on Legal and Constitutional Affairs into the effectiveness of Federal laws in preventing sexual harassment, sex discrimination and family responsibility discrimination.
Key amendments made as a result of the Act include:
- expanding the provisions on discrimination on the basis of family responsibilities;
- making breastfeeding a separate ground of discrimination;
- broadening the definition of sexual harassment and the areas in which the provisions apply; and
- ensuring that protections from sex discrimination apply equally to women and men.
Who do the changes affect?
These changes will affect a number of parties, including but not limited to employers, service providers, clubs and associations, partnerships, employment agencies and education providers.
Businesses should be aware that both Federal and State anti-discrimination apply creating obligations on employers to take all reasonable steps to prevent harassment and discrimination from occurring. Therefore, it is essential that businesses have a good understanding of their obligations under Federal laws such as theSex Discrimination Act 1984, as well as relevant State discrimination laws.
What is changing in relation to family responsibilities?
Prior to the operation of the Act, an employee could only claim discrimination on the basis of family responsibilities where they had been dismissed.
However, the Act has increased the number of situations in which an employee can claim direct discrimination on the basis of family responsibilities to include:
- the terms or conditions of employment the employee is afforded;
- denying the employee or limiting the employee access to opportunities for promotion, training or other employment related benefits;
- terminating the employee; or
- subjecting the employee to any other detriment.
What is changing in relation to breastfeeding?
Prior to the operation of the Act, breastfeeding was not a separate ground of discrimination, but treated as being a form of sex discrimination.
The Act establishes breastfeeding as a separate ground of discrimination. Complaints can be made both in relation direct discrimination and indirect discrimination. This means that it would be unlawful to refuse to employee a person because she is breastfeeding or to impose a condition that would make it impossible for an employee to breastfeed, unless the condition would be reasonable in all circumstances.
What is changing in relation to sex discrimination and sexual harassment?
Prior to the commencement of the Act, it was a requirement for sexual harassment to be proven that a reasonable person would have anticipated that the person making the complaint would be offended, humiliated or intimidated by the conduct.
The Federal Government argued that this was too narrow. Accordingly, under the Act, it is now only required that a reasonable person would have anticipated the possibility that the person making the complaint would be offended, humiliated or intimidated.
Further, to assist in determining whether a reasonable person would have anticipated the possibility that the person making the complaint would be offended, humiliated or intimidated by the conduct, the Act provides a non-exhaustive indicative list of circumstances to be taken into account. Circumstances to be taken into account, include, but are not limited to:
- the sex, age, marital status, sexual preference, religious belief, race, colour, national or ethnic origin of the person making the complaint;
- the relationship between the person making the complaint and the person engaging in the conduct;
- any disability of the person making the complaint; and
- any other relevant circumstance.
This means that the threshold to prove sexual harassment has been lowered.
The Act has also widened the protection available to service providers against sexual harassment by their customers and clients. Where service providers prior to the commencement of the Act were not able to take action against customers and clients for sexual harassment, they are now afforded the same level of protection as for employees.
In response to media reports on the increased use of new technologies to such as social networking websites, email, SMS and mobile telephone cameras in harassment, the Act now specifically covers harassment through these technologies.
Before the commencement of the Act, there was greater protection for women than men against sexual harassment and sex discrimination and in some circumstances, men were unable to make a complaint under the Federal law due to the constitutional powers underpinning the Law. However, these limitations have now been removed, ensuring that women and men enjoy the same protections against discrimination and harassment.
What do I need to do comply with the changes?
Businesses should review their policies, procedures and manuals to ensure they are up to date and reflect these amendments.
Also, given that the threshold to claim sexual harassment has been lowered, it is important that businesses implement policies, procedures and training to prevent harassment from occurring and investigate and manage complaints should they occur.
Want more information?
Call Business SA’s Business Advisory Centre on 8300 0101.
