Federal government releases sex discrimination guidelines

Federal government releases sex discrimination guidelines

All Australian employers, regardless of their size, need to have an understanding of the recently released government publication Guidelines for Complying with the Positive Duty under the Sex Discrimination Act 1984 (a full copy of which is attached).

The publication outlines the obligations placed on employers to ensure the prevention of discrimination within the workplace. A modified version has also been produced directed at small businesses (a full copy of which is also attached).

The government has introduced the concept of a ‘positive duty’, which requires organisations and businesses to take reasonable and proportionate measures to eliminate, as far as practicable:

  • Discrimination on the grounds of sex in a work context;
  • Sexual harassment in connection with work;
  • Sex-based harassment in connection with work;
  • Conduct that amounts to subjecting a person to a hostile work environment on the grounds of sex;
  • Related acts of victimisation.

The guidelines suggest the best method for employers to successfully eliminate unlawful conduct involves consultation with employers, promotion of gender equality, ‘Intersectionality’ (recognising the risks and impacts of unlawful conduct), and being person-centred and trauma-informed.

In determining whether an organisation or business has met its positive duty, government agencies will consider a range of factors, including:

  • the size, nature and circumstances of the business or undertaking;
  • the resources of the organisation or business, whether financial or otherwise;
  • the practicality and the cost of measures to eliminate the relevant unlawful conduct;
  • any other relevant matters.

Employers would no doubt be aware that they can be held vicariously liable for the actions of their employees.

From 12 December 2023, the Australian Human Rights Commission will have the legal right to commence an inquiry when it ‘reasonably suspects’ that an organisation is not complying with its positive duty.

To assist businesses to comply with their obligations, the Guidelines include Seven Standards to focus on, including leadership, culture, knowledge, risk management, support, reporting and response, and monitoring, evaluation, and transparency.

The Guidelines include many practical examples to assist businesses in meeting their obligations.

Guidelines for Complying with the Positive Duty under the Sex Discrimination Act 1984 (Cth)

A Resource for Small Business on the Positive Duty under the Sex Discrimination Act 1984 (Cth)

For queries about sexual discrimination, strategies to avoid harassment claims or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 925 529, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

Ref: 380.0923

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