Thursday, September 1, 2011

New Sex & Age Discrimination Legislation – What you need to Know

On 24 May 2011, the federal government passed the Sex and Age Discrimination Legislation Amendment Act 2010 (the Act) that came into effect on 29 July 2011. The Act primarily changes the Sex Discrimination Act 1984 by extending protections relating to sexual harassment, family responsibilities and breastfeeding. Further, the Act also makes changes to the Age Discrimination Act 2004 including establishing a stand-alone Age Discrimination Commissioner in the Australian Human Rights Commission.

The Act make four main changes to the previous legislation: 
1.       Protects family responsibilities from discrimination
Under the original Act, discrimination on the grounds of a person's family responsibilities was limited to situations where an individual suffers discrimination through the termination of their employment. However, when the Act came into effect it effectively extended the scope of this protection by prohibiting direct discrimination on the basis of family responsibilities for both men and women in all areas of employment.
2.       Protects Breastfeeding  mothers from discrimination

The Act establishes breastfeeding as a separate stand-alone ground of discrimination. Therefore 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 women who are breastfeeding.   Importantly, breastfeeding is defined in the Act to include the act of expressing milk, single acts of breastfeeding, and breastfeeding over a period of time. 
3.       Offers Greater protection from sexual harassment

Under the original legislation, sexual harassment was taken to have occurred if a reasonable person 'would have anticipated' that the person being harassed would be offended, humiliated or intimidated by the unwelcome sexual conduct. The New Act broadens this test so that a reasonable person only needs to anticipate 'the possibility' that the person harassed would be offended, humiliated or intimidated for the conduct to contravene the Act.  The Act also makes it unlawful to be sexually harassed by customers and clients of your business.

4.       The establishment of an age discrimination commissioner
 The Act includes a provision that a stand-alone Age Discrimination Commissioner must be established in the Australian Human Rights Commission. The Age Discrimination Commissioner will address age discrimination by educating the community about discrimination and combating the attitudes and stereotypes which can contribute to discrimination on the basis of age.

 So what must you do to ensure your business complies? Here are a few things you can do:
·       Ensure your policies and procedures address both sex discrimination and age discrimination proactively;

·       Treat an employee who has family responsibilities equally to how you would treat someone who does not have family responsibilities, this is regardless of the sex of the employee

·       ensure your staff are aware of their responsibilities to ensure compliance with these new laws; and

·       Your business must not directly (or indirectly) discriminate against a employee who is breastfeeding. An example of direct discrimination would include not promoting a prospective employee because she is breastfeeding. Indirect discrimination would occur you did not provide suitable breaks and place during the working day that in effect prevents a breastfeeding female employee from expressing milk at work.

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