Gender identity, lawful sexual activity, sexual orientation discrimination - Workplace

It is against the law to discriminate against anyone in the workplace because of their actual or assumed sexual orientation, gender identity or lawful sexual activity.

Employees are protected from discrimination at all stages of employment including recruitment, workplace terms and conditions and dismissal

Gender identity

Gender identity is where people of one sex identify as a member of the other sex, or where people of indeterminate sex identify as a member of a particular sex. 

A person may identify as a member of a particular gender by through the way they dress, a name change or medication intervention, such as hormone therapy, counselling or sex reassignment surgery.

Discrimination against transgender people in employment

Transgender people experience significant levels of discrimination, not just in employment but in all areas of life. In employment, discrimination can include not being recognised as their preferred gender, being forced to disclose private information and missing out on employment opportunities. The Commission has developed a Guideline - Transgender people at work > complying with the Equal Opportunity 2010 in employment - which outlines legal obligations for employers regarding discrimination based on gender identity and information about gender identity issues more broadly. There are also supplementary materials, including information on developing a transition plan and policy template available to download.

Lawful sexual activity

Lawful sexual activity includes taking part in, or choosing not to take part in, any form of sexual activity that is legal in Victoria, including legal prostitution. 

This does not include sexual activities that are against the law, regardless of a person’s gender or sexual orientation.

Sexual orientation

Sexual orientation covers homosexuals, lesbians, bisexuals and heterosexuals, as well as people perceived to fall into one of these groups.

Expunged homosexual conviction

On 1 September 2015, an attribute was added to section 6 of the Act to prohibit discrimination on the basis of an expunged homosexual conviction. It is added as section 6(pa) of the Equal Opportunity Act.

The purpose of expunging historical homosexual records is to remove the stigma of a criminal record and the practical impediments created by a criminal record in relation to travel, employment, volunteering, appointments, licences and permissions.

Examples of gender identity, lawful sexual activity or sexual orientation discrimination

Anne-Marie has recently legally changed her name from Joseph and identifies as a female. Even though most of Anne-Marie's colleagues have been supportive, her boss is uncomfortable with her gender identity. He tells Anne-Marie that she can’t use the ladies’ toilets at work because it might make other staff feel uncomfortable. This is gender identity discrimination.

Meredith identifies as female. Her colleagues continually refer to her directly as ‘Sir’ and she repeatedly overhears comments from colleagues about herself using male pronouns such as ‘he’ and ‘him’. Meredith has politely asked people to address her appropriately but most make no effort to use suitable pronouns. This is also gender identity discrimination.

Jeanette works in a competitive scientific field. When her employer discovers she is in a relationship with a staff member from a rival company he sacks her because he is afraid she is ’giving away trade secrets’ to the competition. This is lawful sexual activity discrimination.

Susan applies for a position as a receptionist with a large company. At the interview, she is asked about her outside interests. Susan lists a number of hobbies, including membership of a lesbian choir. The interviewer abruptly concludes the interview by saying he does not think that Susan would be a good ‘fit’ for the workplace. This is sexual orientation discrimination.

Andy, who is gay, works alongside Don, who repeatedly puts postcards of nude men on Andy’s desk. Don also asks male co-workers if Andy makes passes at them. This is also sexual orientation discrimination.

Frank applies for a position with a construction company but doesn’t get the job. When he calls the company’s human resources manager to ask why he wasn’t chosen, she tells Frank: “We heard that your criminal record has been altered which you failed to tell us about. We don’t employ people with criminal records.” This is expunged homosexual conviction discrimination.

Are there any exceptions?

The Equal Opportunity Act 2010 includes some general exceptions. This means that discrimination may not be against the law in particular circumstances. 

Complaints

Employers may be vicariously liable for their employees’ acts of discrimination or sexual harassment. Employers can also be directly liable. Find out more about who is liable for discrimination and harassment.

Employers also have a positive duty to eliminate discrimination, sexual harassment and victimisation as far as possible.

Complaints of discrimination made to the Commission are resolved through a process called conciliation. Find out more about our process for resolving complaints.

 

Lodge a complaint with us
Chat live with us now
Subscribe to our eBulletin