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Lesbians and gay men are protected from workplace discrimination, harassment, vilification and unlawful termination by federal and state laws.
Discrimination and harassment
Discrimination is when a person treats you less favourably because of your sexuality or your suspected sexuality. For example, discrimination may have occurred if you are regularly rostered on unpopular shift after your employer discovers you are lesbian or gay. Discrimination may also involved a number of other grounds, including such as sex, race, age or disability (including HIV/AIDS status).
Harassment includes behaviour that is unwanted, and offends, intimidates or humiliates a person. For example, a boss calling a gay employee a ‘poofter’ may be considered harassment (or vilification) under NSW law.
Sexual harassment may include unwanted behaviour of a sexual nature that is offensive, humiliating or intimidating, such as sexual touching or sexually explicit jokes, emails or screensavers.
In NSW, the Anti-Discrimination Act 1977 makes it unlawful to harass or discriminate against a person on the basis of their homosexuality, disability (including HIV/AIDS status), race, age, marital status, sex (including pregnancy), transgender status or carer’s responsibilities.
It is against the law to harass or discriminate against a person in most types of employment, including when a person applies for a job, at any time during employment, or when leaving a job. Complaints of discrimination relating to employment can be made to the NSW Anti-Discrimination Board [link to http://www.lawlink.nsw.gov.au/lawlink/adb/ll_adb.nsf/pages/adb_homosexual].
Some employees are not covered by NSW anti-discrimination laws and so have limited protection against discrimination on the grounds of sexuality. NSW anti-discrimination laws give wide exemptions to religious institutions and private educational institutions to enable discrimination on the basis of sexual orientation or gender identity where it is necessary to avoid injuring the religious susceptibilities of the organisation. For example, a teacher who is discriminated against by a private or religious school will not be protected under NSW anti-discrimination law.
There is currently no federal anti-discrimination law to protect lesbians and gay men from discrimination on the grounds of sexuality. The Fair Work Act 2009 makes it unlawful to take adverse action (including dismissal) against an employee on the basis of their "sexual preference." Complaints of discrimination in relation to sexual orientation can also be made to the Australian Human Rights Commission.
As part of the Australian Human Rights Framework, the Federal Government is currently consolidating all Commonwealth anti-discrimination laws with a view to include sexual orientation and gender identity. It is expected that such legislation will be introduced at the end of 2012.
Have you experienced discrimination or harassment at work because of your sexual orientation? Click here to find out where to get help.
Vilification
The NSW Anti-Discrimination Act 1977 also makes it unlawful do anything publicly that could encourage severe ridicule, serious contempt or hatred, of a person on the basis of their homosexuality, race, transgender or HIV status.
Examples of vilification could include statements in the media that vilify lesbians and gay men or graffiti that vilifies lesbians and gay men.
Have you experienced vilification on the basis of your sexual orientation? Click here to find out where to get help.
Unfair or unlawful termination
A person may have an unfair dismissal claim if that person believes their employment was terminated in circumstances that were harsh, unjust or unreasonable, or if they have been threatened with dismissal.
Adverse action against employees on the basis of their "sexual preference" is covered by the Fair Work Act 2009 laws or state laws.
If a person’s employment was terminated because of their homosexuality, disability (which includes HIV status), transgender status, race, age or sex, they may have a claim under NSW anti-discrimination laws.
Do you believe you have been dismissed unfairly? Click here to find out where to get help.
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Further information
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