Amendments to the Sex Discrimination Act 1984
On 24 May 2011, Federal Parliament passed amendments to the Sex Discrimination Act 1984 (Cth) (‘the Act’) which clarify and expand the range of actions which constitute discrimination. These changes are important for employers, whose obligations to safeguard against sexual harassment are extended by the amendments.
Meaning of ‘sexual harassment’
The amendments to the Act have altered the definition of sexual harassment under s28A(1). Prior to the changes, the Act defined sexual harassment as, among other things, a situation in which “a reasonable person…would have anticipated that the other person would be offended, humiliated or intimidated by the conduct”. This section has now been amended such that a reasonable person need only have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct.
Although the use of the words “the possibility” appears to be a minor alteration to the provision, it clearly broadens the circumstances in which sexual harassment could occur. For instance, under the old definition sexual conduct where it was unlikely, but still possible, that a person would be humiliated was not unlawful.
Greater protections
The amendments establish or broaden protections against discrimination in a number of key respects. These include:
• establishing breastfeeding as a distinct ground of discrimination;
• extending protections against workplace sexual harassment to protect employees against harassment by clients, customers or other persons with whom they have contact in the course of their employment;
• extending the prohibition of discrimination on the basis of family responsibilities to apply to discrimination in all areas of employment, rather than just termination of employment;
• ensuring equal protection from sex discrimination is afforded to men and women.
A timely reminder to ensure a harassment-free workplace
The enhanced protections against discrimination demand vigilance on the part of employers in ensuring a harassment-free workplace. Not only do the amendments increase the ambit of circumstances which could be considered sexual harassment, but it is worth bearing in mind that substantial penalties exist for employers who fail to adequately protect their employees.
The following cases illustrate the risks of failing to guard against workplace sexual harassment:
• The RAAF was ordered to pay $130,000 in damages for failing to appropriately deal with incidents of sexual harassment toward a female employee;
• Kirsty Fraser-Kirk received a reported $850,000 settlement for a sexual harassment claim she made against former David Jones Chief Executive;
• A QLD health employee was given $14,665 in compensation after it was discovered the employer lacked adequate procedures for dealing with complaints.
Employers should note that substantial payouts for failing to comply with sexual harassment legislation can be awarded irrespective of the size of the business or the nature of its operations. As such, it is essential that all employers take note of legislative changes and ensure they are fully compliant. The amendments will necessitate the review by employers of their policies and procedures, training packages and induction processes.
If you would like to discuss changes to the Sex Discrimination Act 1984 (Cth) and the compliance requirements for your workplace, please do not hesitate to contact Nathan Lindsay, Research Consultant.
