Tougher Harassment Laws | WISE Workplace

Published - June 2011

On 24 May 2011, Parliament passed the Sex and Age Discrimination Legislation Amendment Bill 2010. These new anti-discrimination laws are likely to come into effect in July 2011. The new legislation amends the Sex Discrimination Act 1984 (Cth) to strengthen protections against sexual discrimination. Employers should familiarise themselves with these important changes.

Employers should be aware that the Sex Discrimination Act 1984 does not limit the operation of state or territory anti-discrimination laws and employers must be familiar with all applicable anti-discrimination laws.

New Test for Sexual Harassment

The new legislation changes the test for what kind of conduct constitutes sexual harassment and makes it easier for individuals to prove they have been harassed. Under the existing legislation, sexual harassment occurs where a reasonable person would have anticipated that the person being harassed would be offended, humiliated or intimidated by the unwelcome sexual conduct. Once the new legislation comes into force, it will only be necessary to show that a reasonable person would have anticipated the possibility that the victim would be offended, humiliated or intimidated by the conduct. This new standard may encourage complainants to come forward with allegations of harassment because it will be easier to prove their case.

Broader Protection from Sexual Harassment

The new legislation will ensure that employees are protected from sexual harassment by customers, clients and people employed by other organisations. Employers will be required to take all reasonable steps necessary to protect their employees. This could also amount to a significant broadening of potential harassment complaints. 

Extended Protection regarding Family Responsibilities 

Family responsibilities generally include the responsibilities of an employee to care for or support a dependent child or any other immediate family member who is in need of care and support. At present, employee protection against discrimination on the grounds of family responsibilities is limited to situations in which a person suffers discrimination in relation to the termination of their employment.  The new legislation will extend this protection to both men and women in all aspects of work, not just termination. Employers may increasingly be required to contemplate flexible working arrangements so as not to particularly disadvantage people with family responsibilities. The ground of discrimination does not allow complaints to be brought by people without family responsibilities in relation to rights, privileges or other conditions which recognise the special needs of people with family responsibilities. 

It is important for employers to review these changes and review their policies and practices. For example, it unlawful to request or require another person to provide information if the information would enable the requester to unlawfully discriminate. This could impact questions asked of candidates during the interview process. 

Protection for Breastfeeding 

The new legislation will expressly protect employees against discrimination in relation to breastfeeding. Breastfeeding will now be protected as a separate ground of discrimination. It will be discriminatory for an employer to treat a woman who is breastfeeding less favourably than someone who is not. It will also be discriminatory to impose a condition, requirement or practice that is likely to have the effect of disadvantaging women who are breastfeeding. Employers may also have to take special measures to accommodate the needs of breastfeeding women in the workplace, such as providing private areas for breastfeeding.