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New laws to combat LGBTI discrimination

13 August 2013

New federal laws to prevent discrimination against gay, lesbian and intersex people may force employers to revisit their anti-discrimination training and policies.

Earlier this month, the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status Act 2012 (Cth) (SDA Amendment Act) came into effect, inserting new grounds into the existing Sex Discrimination Act 1984 (Cth).

Most states and territories have existing laws to prevent discrimination on the basis of sexual orientation, but this amendment strengthens the existing laws and provides scope for the Australian Human Right Commission to accept complaints concerning discrimination on the basis of sexual orientation. The amendment also extends the definition of "marital status" to "marital or relationship status" to include de facto same-sex couples.

Gender and sexuality can be complex and sensitive areas to navigate in the workplace. As a general rule, sexual preference and gender identity should be factored into your anti-discrimination training and policies.

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In particular, think carefully about indirect discrimination – where established policies or processes may inadvertently discriminate against employees with same-sex partners or those who identify as intersex. As examples, spousal rights and benefits and parental leave provisions are some of the most common areas where gay, lesbian and bisexual employees may be discriminated against. Records management processes and provision of bathrooms can cause problems for intersex employees.

How should employers proceed? Take a sensitive, consultative approach and ensure employees feel comfortable discussing their individual needs. Fair treatment of all employees is the primary goal, so avoid drawing unnecessary attention to individual differences.

It is also important that all employees, including management, receive appropriate anti-discrimination training to ensure awareness of appropriate workplace behaviour and to equip staff with the knowledge and skills to deal with any issues. Providing anti-discrimination training will also help your organisation to show preventative measures have been taken should any complaints arise.

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