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The Sex Discrimination Amendment Bill 2010 (SDA Bill)

The Australian Government's amendments to the Sex Discrimination Act (SDA) have passed through parliament. The amendments include the much talked about new and separate ground of breastfeeding discrimination and the extension of existing family responsibility protections. But it does more than that and it's surprising that the other areas have not received more of an airing than they have, because their impact is likely to be felt by many employers, their staff and their customers. More on this below.

In 2008 the Senate Standing Committee on Legal and Constitutional Affairs released a report into the effectiveness of the SDA in eliminating discrimination and promoting gender equality. The report made a number of recommendations which form the basis for the amendments contained in the SDA Bill.

The key amendments will have the effect of:

  • extending protections from discrimination on the grounds of family responsibilities to both women and men in all areas of work;
  • providing greater protection from sexual harassment for students and workers;
  • ensuring that protections from sex discrimination apply equally to women and men; and
  • establish breastfeeding as a separate ground of discrimination.

The Bill also provides for the establishment of the position of the Age Discrimination Commissioner within the Australian Human Rights Commission. It is expected that the new Age Discrimination Commissioner would commence work in July.

Item 17 of the SDA Bill inserts the new ground of discrimination in relation to breastfeeding. The ground covers direct and indirect discrimination. As with other areas of discrimination, direct discrimination occurs where a person treats someone less favourably than another person. Indirect discrimination occurs where an apparently neutral condition, requirement or practice has the effect of disadvantaging a particular group. Breastfeeding in the amended SDA will encompass the act of expressing milk.

The SDA before the amendments only prohibit the discrimination on the grounds of family responsibilities for employees whose employment is terminated and is limited to direct discrimination. After the amendments the SDA will provide that that it is discriminatory to treat a person (of either sex) who has family responsibilities less favourably than the discriminator treats or would treat someone who does not have family responsibilities, in the same or similar circumstances. (Direct discrimination.) The amended SDA will also provide that it is discriminatory to impose, or propose to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging people who have family responsibilities. (Indirect discrimination.)

A new subsection, 28A(1A), will provide an indicative list of circumstances which may be relevant to determining whether a reasonable person would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated. Section 28A(1A) provides as follows:

The circumstances to be taken into account include, but are not limited to, the following:

    1. the sex, age, marital status, sexual preference, religious belief, race, colour, or national or ethnic origin, of the person harassed;
    2. the relationship between the person harassed and the person who made the advance or request or who engaged in the conduct;
    3. any disability of the person harassed;
    4. any other relevant circumstance.

Item 22 of the SDA Bill amends section 8 of the SDA which contains the causal requirement for direct discrimination that the act complained of be ''by reason of'' or ''because of'' a protected attribute. The amendment provides that where the discriminator had two or more reasons for doing a discriminatory act, the discriminatory reason need only be one of the reasons for the act, whether or not it is the dominant or substantial reason for the doing of the act. (This is similar to the notion of adverse in the Fair Work Act 2009.)

Section 28F(2)(a) is amended to remove the requirement that a student who suffers sexual harassment must be an adult student (a student over the the age of 16) for the sexual harassment to be unlawful, now sexual harassment of a student by an adult student at the same educational institution will be unlawful irrespective of the age of the student harassed. Two new subsections, 28F(2A) and 28F(2B), will prohibit sexual harassment of a student by a member of staff of another educational institution, and sexual harassment by an adult student of students or staff at another educational institution.

One of the most potentially far reaching effects of the SDA Bill is an amendment to section 28G of the SDA. Section 28G prohibits sexual harassment in the provision of goods, services and facilities.

Prior to the amendments 28G only protected customers and clients against sexual harassment from service providers. It did not protect service providers against sexual harassment from their customers and clients. Now it will. The new subsection 28G(2) makes it unlawful for a person to sexually harass another person in the course of seeking, or receiving, goods, services or facilities from the harassed person. It provides protection to service providers against sexual harassment by customers and clients. Obviously, there could be profound consequences for those organisations which do not take adequate steps (no doubt this will be termed reasonable steps by the courts and tribunals) to ensure that their employees are not exposed to the risk of sexual harassment. This will certainly affect those organisations which provide services in establishments where alcohol is served.

Another new protection for workers is protection, not just from colleagues, but also from people employed by organisations they interact with through work. That could be clients or colleagues in other firms. Prior to the amendment subsection 28B(6) protected workers, or workplace participants from harassment against other workplace participants at a place that is a workplace of both the workplace participants. The requirement that the harassment must occur at the workplace of both of the workplace participants has been removed and will now encompass sexual harassment which arises between people employed by different organisations.

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