Multiple partners: polyamorous church employee’s “discriminatory” dismissal upheld
A Brisbane family services co-ordinator claimed that she was sacked by a church-run community organisation because she was “polyamorous”. However, a court has ruled that federal equal opportunity laws do not protect employees from discrimination based on their sexual behaviour, as distinct from their sexual orientation.
The Australian Macquarie Dictionary defines “polyamory” as “the mating pattern of having a number of sexual partners at the same time”, while the Australian Oxford Dictionary’s definition is “the practice of engaging in multiple sexual relationships with the consent of all the people involved”.
The employer said it sacked the co-ordinator in August 2013 for gross misconduct after it discovered that she had provided the organisation’s contact details to the “Brisbane Poly Group”, which published them on its website. The employee, who was dismissed immediately with five weeks’ pay, says the employer told her the Brisbane Poly Group went against the ethics and moral teachings of the Catholic Church and that such a lifestyle would be in conflict with those teachings.
The co-ordinator lodged a complaint with the Australian Human Rights Commission, alleging discrimination because of her sexual orientation under s4 of the Sex Discrimination Act. After an AHRC delegate dismissed the complaint, she took her discrimination case to the Federal Circuit Court, adding a common law claim for reasonable notice. But the employer asked the judge to throw out the co-ordinator’s claim on the basis that it had no reasonable prospects of success. He agreed, finding that sexual orientation was “how one is, rather than how one manifests that state of being”.
“The manifestation of that state of being can take many forms. Those forms are what we know as ‘sexual behaviour’,” the judge said. He said polyamory was a “manifestation” of the state of being that is a person’s particular sexual orientation.
“It is a ‘behaviour’, rather than a state of being.”
The co-ordinator argued that behaviour was a “sub-set” of orientation, but the judge said that would lead to absurd results.
“If the contention of the [co-ordinator] were correct, many people whose sexual activity might label them as sado-masochists, coprophiliacs or urophiliacs could claim that such is more than mere behaviour; it is in fact their very sexual orientation,” he said.
“If the contention were correct, then the illegal activities of paedophilia and necrophilia may have the protection of the Sex Discrimination Act 1984(Cth).”
The judge said sexual orientation was “something far more” than how a person behaved sexually.
“Many religious persons take a vow of chastity and do not behave sexually at all. Yet they still can have a sexual orientation under the definition in the Sex Discrimination Act 2004. This is because their behaviour does not define their orientation.”
He said he was fortified in his view by an AHRC consultation report, which distinguished between sexual “activity” and orientation (see section 7.3).
Concluding that the co-ordinator’s claim was not “justiciable” under the Act, the judge said he therefore could not hear her common law notice claim, even though he said he would have been disposed to deal with it.
iHR advises that, while this dismissal was legal in Queensland because religious institutions have some grounds to terminate employees who do not adhere to the religion’s beliefs and values, different laws may apply in other states. For example, a similar case could stand up in Victoria if the Labor government is successful in limiting the same exemption to circumstances where a religious belief is an inherent requirement of a job.
The employee may have grounds to pursue a separate claim over the termination of her employment if it was done so in a separate state-based court.
To sustain a dismissal after allegations of misconduct generally requires a thorough, professional conducted workplace investigation. iHR is a leading provider of workplace investigations services and can also review your internally conducted workplace investigations to ensure they are sound and stand up to external testing, as well as training your executives.
