Employment lawyer warns about persisting discrimination in the workplace and its legal consequences
Australia may have made "substantial progress" in protecting LGBTQ+ employees at work, but there are still gaps that employers need to be mindful of as discrimination is not always "overt," according to an employment lawyer.
Nicholas Stewart, partner at Dowson Turco Lawyers (DTL), has pointed out that many LGBTQ+ employees are still encountering barriers in recruitment, promotion, workplace culture, and access to leave and flexible work.
"LGBTQ+ employees can face unique challenges when accessing parental leave, carers' leave, fertility treatment support, surrogacy or adoption-related benefits, or simply explaining family arrangements that fall outside traditional models," Stewart told HRD.
"Even where the law provides entitlements, employees may feel reluctant to exercise their rights if they are concerned about stigma, unconscious bias, or negative career consequences. Workplace culture can be just as important as workplace policy."
He added that some of the most common issues faced by LGBTQ+ employees aren't always "overt."
"They can include misgendering, exclusion from workplace networks, inappropriate questions about a person's identity or family arrangements, and uncertainty about how workplace policies apply to diverse families and relationships," he said.
"People born with innate sex characteristics (intersex people) are often confused with people who identify as non-binary people or trans people."
Many Australian firms have made significant progress in making sure that they are inclusive, particularly larger firms that have invested in inclusive policies, education, and employee networks.
"The challenge for employers is making sure their policies reflect that reality," Stewart said.
"Many organisations have made significant progress, but some workplace systems still operate on assumptions that everyone is heterosexual, cisgender, or part of a traditional family structure. That can create practical and legal difficulties for employees whose lives don't fit those assumptions."
Progress in protecting LGBTQ+ workers
In Australia, there are different laws aimed at addressing the barriers that LGBTQ+ employees face at work.
The Fair Work Act protects employees and job applicants from adverse action because of protected attributes, which includes sexual orientation, gender identity, and intersex status.
The Sex Discrimination Act also makes discrimination on the grounds of sexual orientation and gender identity unlawful in employment and other areas of public life.
"Importantly, these protections apply regardless of whether a person has undertaken any medical transition. The law recognises that gender identity is broader than biological sex and protects people from unfair treatment because of their gender identity or expression," Stewart added.
But he noted that differences in discrimination laws among states and territories can also make a difference.
In New South Wales, its Anti-Discrimination Act 1977 does not provide people with innate sex characteristics with a protected attribute. It is also legal in the state for employers to discriminate against an employee on the basis of the employee being a sex worker, though workers may have other grounds to sue for discrimination, including on the basis of gender, for example.
"My view is that we have made substantial progress, but there remains a gap between legal recognition and lived experience, across Australia," Stewart said.
"Closing that gap will require uniformity in state and federal laws, continued attention to inclusion, education, and practical workplace responses."
What can HR leaders do?
Law reform is only "part of the story," according to Stewart.
The DTL partner stressed that often the biggest issue in workplaces is the "lack of understanding" rather than a lack of good will.
"Employers need practical knowledge about inclusive language, gender affirmation in the workplace, privacy obligations, and the different ways LGBTQ+ people form families and participate in the workforce," he said.
Stewart also pointed out that workplaces face a legal risk when they do not appropriately deal with complaints when it comes to inappropriate conduct.
"Prevention, training, and inclusive policies are far more effective than managing disputes after they arise. Training should be repetitious and regular, and policies should be updated to reflect changing laws or areas of concern," he added.
Census on LGBTQ+ Australians
The Australian government is conducting for the first time ever a national census that includes optional questions aimed at tracking the sexual orientation and gender identity of individuals aged 16 and older.
"Asking both questions will improve the quality of the data collected," the Australian Bureau of Statistics website read. "Together, the answers will help produce data about cisgender, trans, and gender diverse Australians."
Stewart said the census reflects the country's broader societal recognition that Australians' identities and family structures are diverse.
"Each is different, and more data from the census would assist governments with allocating resources, and in turn educating society on who lives in our communities," he said.
