Equality is a fundamental human right
Equality and freedom from discrimination, sexual harassment and bullying are fundamental human rights that belong to all Australians, regardless of sexual orientation or gender identity.
Fair Work Claims is proud to offer support and assistance to members of the LGBTIQ community who experience this sort of unlawful conduct, or any other workplace issue including unfair and unlawful dismissal and wage theft.
We believe in equality, social justice and human rights for all Australians, including members of the LGBTIQ community.
In general, it is against the law for you to be treated unfairly because you are gay or lesbian or transgender, or if someone thinks you are gay or lesbian or transgender.
It is also unlawful if you are treated less favourably because you have a friend, relative or work colleague who is gay, lesbian or transgender.
More specifically, you cannot be treated less favourably based on your:
- sexual orientation
- gender identity (including your dress, expression, transition status or use of hormone therapy)
- intersex status
- HIV status
- marital or relationship status
- family responsibilities (such as co-parenting)
- lawful sexual activity (paid sex work)
Unlawful discrimination can happen:
- at work (including applying for jobs, promotions, transfers and also training)
- in education (involving students over the age of 16 at school, university or college)
- when applying for accommodation (including renting and leasing properties like homes, caravans and motel rooms)
- when accessing goods and services (including transport, government legal, trade and medical services)
- when participating in sports and accessing clubs (in some circumstances)
Discrimination in the workplace
Under the Fair Work Act, it is unlawful to discriminate against someone based on their sexual orientation, gender identity, HIV status, family responsibilities or relationship status.
It can happen to employees, prospective employees applying for a job, or independent contractors.
Adverse action can include things like:
- being sacked
- being forced to resign
- changing your job to your disadvantage (like cutting your shifts)
- not giving you your legal entitlements
If you have suffered adverse action as a result of your sexual orientation or gender identity or relationship status, you will be eligible to make a general protections claim, and may be entitled to substantial compensation.
However, if you have been dismissed from employment, you only have 21-days to file a claim, so it is important to seek expert legal advice as soon as possible.
HIV status discrimination
Both federal and state legislation make it unlawful to discriminate against a person on the basis of an impairment (or disability).
In most states, including Queensland, an impairment includes the presence in the body of organisms capable of causing illness or disease, such as hepatitis, AIDS and HIV-positivity.
If you are living with HIV, you do not have to tell your employer, or prospective employer, that you are HIV-positive, unless you work in healthcare or the defence forces.
If your employer asks you about your HIV status, and you do not work in healthcare or the defence forces, then you have no obligation to disclose.
It is unlawful for you to be treated unfairly, bullied or harassed, or dismissed from employment because of your HIV status.
If you are a sex worker in Queensland, you do not have to disclose your HIV status, however you are not permitted to work in a licensed brothel. You can only work as a sole operator.
If you work in healthcare as a doctor or nurse or dentist, and perform Exposure Prone Procedures, then you must know and disclose your HIV status.
If you apply to join the Australian Defence Forces, you will be tested for HIV. If you test positive you will not be permitted to join the ADF.
If you work in aviation as a pilot or air traffic controller, you are required to undergo regular medical assessments. If you are HIV positive, your clearance to work will be determined on a case-by-case basis.
Finally, if you are applying for insurance, disability and death cover, or income protection insurance, you are required to disclose your HIV status.
An insurance company can legally ask for this information as part of their risk assessment process.
Unfortunately, discrimination laws in most states and territories currently contain exemptions which allow religious bodies and organisations, including schools, to discriminate against students and employees based on their sexual orientation or gender identity.
This discrimination is permitted when the religious body or school claims that it is acting in accordance to the tenants of their faith, or religious beliefs or principles.
Broadly speaking, this allows religious schools, service providers and schools to legally discriminate against LGTBIQ people.
According to the Australian Human Rights Commission, 83 percent of people who identify as gay or lesbian, and 90 percent of people who identify as bisexual, have experienced workplace sexual harassment, compared to 70 percent of their heterosexual colleagues.
Sexual harassment is any unwelcome behaviour that is sexual in nature, which offends, humiliates or intimidates.
It can involve touching, or staring or leering, inappropriate comments, displaying offensive messages, posters or screen savers, or repeated requests for dates or sex.
It can also involve messages and images sent via text message or on social media.
The Fair Work Act says a worker is bulled, if, while at work, an individual or group repeatedly behaves unreasonably towards that worker, and that unreasonable behaviour creates a risk to that worker’s health and safety.
Bullying can take the form of verbal, physical or psychological abuse by an individual or group of people in the workplace.
Serious bullying may constitute a crime, and may require police action including a personal safety intervention order.
Victimisation happens when a person subjects, or threatens to subject, another person to adverse action because that person has made a complaint about discrimination or sexual harassment, or otherwise asserted their rights under discrimination law.
Victimisation is serious and can become a police matter if threats of physical violence are made, or damage to property occurs.
Sexuality vilification happens when a person, or group of people, incites hatred towards, serious contempt for, or severe ridicule of another person, or group of people, based on their sexual orientation, by a public act.
That hatred can be spread publicly in a number of ways, including by verbal abuse, or in writing, or displayed on signage, or posted on the internet and social media.
Vilification is against the law, and in some cases, it can also be a crime.
If you believe you have been the victim of sexuality vilification, it is important that you seek urgent legal advice.
We can help
If you have experienced discrimination, sexual harassment, bullying, victimisation or vilification on the basis of your sexual orientation, gender identity or HIV status, our team of employment lawyers and industrial advocates at Fair Work Claims can help.
We can represent you in the Human Rights Commission, the Fair Work Commission, the Industrial Relations Commission, or any other relevant court or tribunal.
We are specialists at resolving disputes, winning court cases and negotiating substantial compensation for our clients.
Make no mistake, we will fight for you until we achieve justice for you.
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Fair Work Claims is a private consultancy and advocacy firm with no affiliation to any government agency, commission or tribunal.
LAST UPDATED: April 2022