People who are attracted to the same sex or do not conform with gender stereotypes still face discrimination and harassment in a variety of situations.
There is both state and federal legislation making discrimination and harassment unlawful in certain areas and on certain grounds. Both the federal and state laws may cover your circumstances. The legislation is not identical so before making a claim you should seek legal advice about whether your circumstances fit within the law. You should also find out whether you should bring a claim in the Equal Opportunity Commission (WA) or the Human Rights and Equal Opportunity Commission (Commonwealth) or some other place.
Time limits apply in most cases so you should get advice as early as possible.
What Is Discrimination?
Discrimination occurs where, because of a characteristic covered by the legislation (such as sexuality, or disability) one person treats another less favourably than they would treat a person who didn’t have that characteristic.
Not all adverse treatment is discrimination, and not all discrimination is against the law. Discrimination is unlawful when
- it happens because of an attribute or “ground” covered by the law; and
- it happens in an area of public life covered by the legislation; and
- it is not covered by an exception or exemption.
Grounds Of Discrimination
There are various grounds of discrimination in anti-discrimination legislation. Sometimes people are discriminated against because of more than one attribute. The attributes include gender, marital status (including being single or in a de facto couple of any sex), age, physical features, pregnancy, status as a parent or carer, race, ethnicity and national origin, and religious and political beliefs.
The Equal Opportunity Act 1984 (WA) and the Sex Discrimination Act (Cth) prohibit sexual harassment in some areas. In some cases, such as sexual assaults, sexual harassment can also be a crime.
What is sexual harassment?
Sexual harassment means unwelcome conduct of a sexual nature (including an unwelcome sexual advance or request for sexual favours). Sexual conduct includes making a statement of a sexual nature concerning a person – whether the statement is written or spoken and whether it is made to the person directly, or in their presence. It can include negative jokes and remarks about someone’s sexuality, or unwanted advances by someone of the same or a different sex.
Under the Equal Opportunity Act, the person being harassed must have reasonable grounds for believing that they would be disadvantaged if they rejected the conduct, or they must actually reject the conduct and be disadvantaged as a result. Under the Sex Discrimination Act the conduct must happen in circumstances where a reasonable person would have anticipated the person being harassed would be offended, humiliated or intimidated
When is sexual harassment unlawful?
Sexual harassment can be unlawful in connection with a variety of areas of public life. Some of the areas in which it is unlawful are employment (including contract or commission agent work and harassment by employment agents), education, accommodation, and the provision of goods, services or facilities.
Sexual Orientation And Discrimination
The not so good news…
Discrimination on the grounds of sexuality is not covered in the federal anti-discrimination legislation. However, the Human Rights and Equal Opportunity Commission can investigate and conciliate a complaint of sexual preference discrimination in employment. It is also unlawful under the Workplace Relations Act 1996 (Cth) to dismiss someone because of their sexual preference, or for reasons which include their sexual preference. There are some exceptions to this relating to the inherent requirements of a job, and staff of religious organisations.
The good news…
The Equal Opportunity Act (WA) makes it unlawful to discriminate against someone on the basis of their sexual orientation in some areas of public life. Sexual orientation means homosexuality, lesbianism, bisexuality or heterosexuality. The Act covers discrimination on the basis of a person’s actual sexual orientation or discriminating against someone because their sexuality was presumed.
Sexuality discrimination is unlawful in the following areas:
- employment, including contract for service, casual, commission agents, contract workers, partnerships of 6 or more persons, membership of employee or employer organisations, qualifying bodies, and employment agencies
- discrimination by an educational authority in the area of education
- access to places and vehicles
- provision of goods, services, or facilities
- in the area of accommodation
- disposal of land
- membership of a club
- application forms (requiring information about a particular sexual orientation).
WATCH THIS SPACE…
On 4 September 2003, the United Nations Human Rights Committee found that the Federal Government violated article 26 of the International Covenant on Civil and Political Rights in refusing a pension to a man who had been in a same sex couple. The man had applied for the pension as the dependent of his partner - a war veteran - but it was denied because he was not considered a “member of a couple” under the relevant legislation. The Federal Government provided no arguments on how a distinction between same-sex partners, who are excluded from pension benefits under law, and unmarried heterosexual partners, who are granted such benefits, was reasonable and objective. (Case No. 941/2000: Young v. Australia)
Article 26 of the Covenant…
All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Under federal law the Sex Discrimination Act 1984 (Cth) ‘marital status’ doesn’t include being in a same sex couple. However, you can complain about discrimination on the basis of your ‘single’ (i.e. unmarried) status.
Under the Western Australian legislation, it is unlawful to discriminate against someone because of their marital status. Marital status includes, among other things, being single, a de facto partner or married. De facto partners includes partners of any sex. The areas in which discrimination on the ground of marital status is unlawful are similar to those for sexuality – but not identical.
Under the Equal Opportunity Act and the Disability Discrimination Act 1992 (Cth) it is unlawful to discriminate against someone who has an impairment. This can include people who:
• have HIV/AIDS,
• are thought or presumed to have HIV/AIDS,
• may have HIV/AIDS in the future,
• are a carer of someone with AIDS.
Discrimination is allowed if it is ‘reasonably necessary’ to protect the health, safety or property of any person or the public generally. At work, the employer must consider whether the person can fulfill the ‘inherent requirements’ of the job, i.e. what is necessary to get the basic job done.
It is unlawful under the Equal Opportunity Act to discriminate against a “gender reassigned person” (ie a person who has undergone a gender reassignment procedure and has been issued with a recognition certificate or equivalent certificate) on the ground of that person’s gender history. The areas of public life covered are similar to those covered in relation to sexuality discrimination. A person has a “Gender history” if they identify as, or seek to live as a member of a sex which was not their sex at birth.
Exceptions And Exemptions
There are specific exceptions to the times when discrimination is unlawful under each ground. For example, it is not unlawful to do something which aims to ensure that people of a particular sexual orientation have equal opportunities afforded to them or to ensure persons of a particular sexual orientation access to facilities, services or opportunities to meet their special needs in relation to employment, education, training or welfare.
Insurance companies can impose different terms or refuse cover to someone on the ground of impairment if it can be supported by statistical data, e.g. smokers are more likely to become ill or die. It may be reasonable to treat someone with HIV differently. It is not reasonable to assume that all gay men pose a greater insurance risk.
Religious beliefs or principles
Discrimination is allowed if it is based on genuine religious beliefs or principles. This includes the actions of religious bodies or schools.
An employer who employs no more than the equivalent of five full-time employees (not including family members) can discriminate when hiring staff, but not once you are employed.
What You Can Do About Discrimination
Contact the Equal Opportunity Commission. The Enquiry Unit can be contacted by telephone on (08) 9216 3934 or toll free on 1800 198 149 or TTY (08) 9216 3936 on each week day, or by email firstname.lastname@example.org. Their web site is www.equalopportunity.wa.gov.au.
The Commission can advise you of your legal options under both state and federal law. Your complaint will be dealt with confidentially. The commission is not a court or tribunal, it operates through conciliation. You need to think about what outcome you want. This can include things like an apology, payment of compensation, an undertaking to employ or promote you or to provide accommodation (depending on the case), or a policy change.
Discrimination can be difficult to prove. Nevertheless, changes often occur because someone has made a complaint, and you may help someone else, even if it doesn’t improve your situation.
If you are victimised because you have complained, you can make another complaint to the commission about that.
Discrimination At Work
One of the most common forms of discrimination experienced by lesbians, gay men, bisexuals and transgender people is harassment in the workplace. This can take the form of jokes, snide remarks, put-downs, isolation or failing to use a gender re-assigned person’s preferred name and pronouns. This can affect work performance, chances of promotion and access to other benefits such as training and professional development.
You can complain about discrimination in your workplace. If you are worried about the confidentiality of your complaint in the workplace, discuss the problem first with the Equal Opportunity Commission. They can advise you of your options. If you think you may be experiencing discrimination or harassment, make sure you consult a doctor, counsellor or similar professional. Apart from helping you to cope, any notes taken may become important evidence in a legal case. Also, it is a good idea to take notes yourself about what is happening. Notes taken around the time of the incidents can be valuable evidence.
What to do
You can make a complaint under the Equal Opportunity Act or the Human Rights and Equal Opportunity Commission Act 1986 (Cth). There are time limits to making a complaint, so you should get advice promptly.
Workplace Relations Act
Under this Federal Act it is unlawful to dismiss an employee because of their sexual preference. You only have 21 days to lodge a complaint with the Australian Industrial Relations Commission, tel. 8661 7777.
You may also have a claim under State unlawful dismissal legislation. You only have 28 days to lodge a complaint.
You can talk to your union representative.
Award or enterprise agreement
The award or agreement relevant to your job may have anti-discrimination provisions similar to the Equal Opportunity Commission. Workplace policies may also prohibit discrimination and harassment.
If the harassment is causing you stress and you need to take time off work, you may be able to make a WorkCover claim. See your doctor to start the process. Get advice about the applicable time limits.
If you or the person you are complaining about are members of a professional association, you can talk
to that association.
If you have been physically assaulted or threatened, you can complain to the police (see the Violence section).