This type of discrimination occurs where a person is treated unfavourably because of their sexuality or gender, or because of characteristics that they are assumed to have because of their sexuality. For example, it is discrimination to refuse to hire a worker because they are bisexual. It would also be discrimination for a relationship-preparation course to exclude same-sex couples because it is assumed that their relationships are not enduring, or to pay male workers more than female workers in the same role.
Legislation:
See also the Workplace Gender Equality Act 2012 (Cth) for more information on gender equality targets for relevant employers [s 4].
Areas of discrimination on basis of sexuality or chosen gender under SA law
Under Part 3 of the Equal Opportunity Act 1984 (SA) it is illegal to discriminate on the basis of sexuality or gender in the following areas:
Exemptions
There are exemptions in the following circumstances:
Areas of discrimination on basis of sexual preference and gender identity under Commonwealth law
It is unlawful under the Sex Discrimination Act 1984 (Cth) to discriminate on the basis of sexual orientation [s 5A], gender identity [s 5B] or intersex status [s 5C] in the following areas:
Exemptions
There are exemptions in the following circumstances:
Making a complaint
Complaints can be made to the Australian Human Rights Commission or the Equal Opportunity Commission. There is no cost to lodge a complaint in either Commission. For forms and guides on making a complaint see the websites of the Equal Opportunity Commission and the Australian Human Rights Commission.
The Fair Work Commission can hear claims of discrimination in work on the ground of sexual preference and address equal remuneration, under the Fair Work Act 2009 (Cth) [section 351 and Part 2-7]. More information is available in the Employment chapter and in the Fair Work Commission's guide to general protection applications.
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Time limit: The Australian Human Rights Commissioner may decide not to take any action for complaints on acts committed 2 years (24 months) previously [Australian Human Rights Commission Act 1986 (Cth) s 46PH]. Until 12 December 2022, the time period was 6 months for any claims not being made under the Sex Discrimination Act 1984 (Cth). The Equal Opportunity Commission normally requires a complaint to be made within 12 months of the event being complained of but can grant extensions of time [Equal Opportunity Act 1984 (SA) s 93]. General protections claims relating to dismissal have a 21 day time limit (from the date of notice of dismissal) in the Fair Work Commission, unless exceptional circumstances justify an extension of time [Fair Work Act 2009 (Cth) s 394]. |
Mike and Greg lived together in an Adelaide suburb. Their property was assessed by the local council for installation of a new driveway. When the worker arrived to do the work they made derogatory comments about Mike and Greg's sexuality after seeing them together in the house. Some of the comments that they made were, 'You gays don't deserve to have this work done ... I will make you wait', and 'I know people who will bash you up'. The worker then refused to finish the work promised. Mike and Greg were angry and felt humiliated by these remarks.
Mike and Greg complained to the local council but were told that the worker was an independent contractor and not the council's responsibility. Mike and Greg then made a complaint to the Equal Opportunity Commission.
Outcome: At conciliation the Council agreed to provide all contract workers with written information about their responsibilities regarding discrimination, that all people requesting a copy of council policy will receive one free of charge and made a commitment to ensure that their staff were aware of their discrimination policy. A payment of $500 each was made to Mike and Greg for injury to feeling.
We embrace diversity and welcome all people, irrespective of culture, faith, sexual orientation and gender identity.
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Legal Services acknowledges Aboriginal people as the Traditional Owners and ongoing occupants of the lands and waters in South Australia and we respect their spiritual, cultural and heritage beliefs. We recognise their continuing connection to land, water and community and pay our deep respect to Elders past and present.
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