The Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 came into effect last week, applying protections against workplace discrimination on those who identify as LGBTI.
Although direct discrimination is easily identified, Katie Sweatman, senior associate at DLA Piper, believes HR may be less aware of indirect discrimination. She told HC that employers should be mindful of where a requirement is placed on someone which they can’t comply with because of their attribute as being intersex or transgendered.
This can include not allowing a transgendered person to use toilets or changing rooms of their identified gender, for instance. Essentially, requiring them to participate in activities according to the gender they have transitioned from.
“I think it is just being sensitive and not getting into gender stereotypes,” Sweatman explained. She offered the example of black tie events, where women are required to wear cocktail dresses. “In some cases you may have somebody who identifies in a certain way where a dress requirement like that makes them feel uncomfortable.”
Employers should make sure to check policies and procedures to ensure requirements for gender binaries are not detailed if there is no need. Sweatman stated that obligations, policies and procedures must apply regardless of if a person identifies as male, female or neither.
“I can’t think of any particular occupation or any particular circumstance where ‘male or female’ is going to be relevant. Where it may be relevant is as part of a medical check but then that would be something a medical practitioner would be reviewing rather than the employer,” Sweatman said.
Sweatman equated asking an employee or candidate’s gender with asking marital status, which used to be the norm. “Where there are forms that indicate binary male or female, considering whether or not that information is really required to start off with, and if it is required, whether there can be the option of an employee to tick something other than the binary male or female.”
Additionally, employers may need to review how their policies reflect employees in same-sex relationships. Sweatman highlighted that, due to language used in policies, members of a same-sex relationship my not be entitled to parental leave. “It may be that in a lesbian same-sex couple, the partner who has not given birth to the child may not be entitled to the three week concurrent parental leave … because she’s not a man and often those policies refer to ‘the man’ or ‘the father’.”
What is of great importance, however, is for HR managers to not “make a fuss” over their LGBTI employees. “They just want to glide into work and be treated the same as anyone else who is cis-gendered,” Sweatman explained.
Cis-gendered refers to individuals who identify with their birth gender.
While education may need to take place in regards to their employees, it should be done in a discreet and sensitive manner to avoid un-intentionally alienating employees.
“It is really just about recognising the individual and their right to identify sexually and in terms of their gender in the way that makes them most comfortable and that is going to make them a happier and more productive employee,” Sweatman said.