Why it is important
LGBTIQ+ discrimination in the workplace is a major issue. One in ten Australians in the workforce identifies as LGBTIQ+. And according to Indeed data, almost half (44%) of working age LGBTIQ+ Australians report either having personally experienced or witnessed discrimination in the workplace.
Managers may believe that they either do not have any LGBTIQ+ employees or that their organisation does not have an issue with discrimination. However, it is important to be aware that it can be an invisible issue. More than six in ten (63%) LGBTIQ+ workers do not feel comfortable coming out at work. This indicates that many organisations may be failing to create psychologically safe workplaces in which LGBTIQ+ employees feel that they can be their authentic selves.
Discrimination can have negative impacts on both the affected employee and the organisation. It can lead to disengagement, lower wellbeing, and lower performance and productivity, which can subsequently impact the individual’s working relationships and career progression. But fortunately, there are actions you can take to help prevent discrimination in the workplace.
Understanding your legal obligations
An important part of avoiding LGBTIQ+ discrimination is learning about the legal anti-discrimination framework. In Australia, different federal and state and territory laws contain discrimination protections for LGBTIQ+ people. It is worth carefully reviewing the following laws to work out how they may affect your workplace.
Important federal legislation
- The Sex Discrimination Act 1984 (SDA): The act makes it unlawful to treat people unfavourably because of their sexual orientation, gender identity or intersex status. The SDA prohibits discrimination throughout the entire employment life cycle, from advertising a job to termination of employment.
- Fair Work Act 2009: This law prevents employers from taking any ‘adverse action’ against a person because of their sex, sexual orientation, gender identity or intersex status (among a range of other attributes). An adverse action can include things like dismissing an employee, refusing to employ someone, discriminating between employees, and adversely impacting an employee by changing their position.
State and territory anti-discrimination legislation
In addition to the federal laws, each state and territory has their own anti-discrimination and equal opportunity legislation containing protections against LGBTIQ+ discrimination in the workplace. There is quite a lot of overlap between federal and state and territory laws in terms of discrimination protections. However, both apply to your workplace, so it is important to carefully review both sets of laws to find out what your anti-discrimination obligations are. Here is a list of the relevant state and territory laws.
- Australian Capital Territory: Discrimination Act 1991
- New South Wales: Anti-Discrimination Act 1977
- Northern Territory: Anti-Discrimination Act 1992
- Queensland: Anti-Discrimination Act 1991
- South Australia: Equal Opportunity Act 1984
- Tasmania: Anti-Discrimination Act 1998
- Victoria: Equal Opportunity Act 2010
- Western Australia: Equal Opportunity Act 1984
Direct and indirect discrimination
Various anti-discrimination laws distinguish between direct and indirect discrimination. Here is an overview of the distinction between the two.
Direct discrimination
Direct discrimination occurs if a person treats someone less favourably because of their sexual orientation, gender identity or intersex status.
An example of direct sexual orientation discrimination is not promoting an employee because they identify as gay or bisexual.
Indirect discrimination
This form of discrimination may be subtler and more difficult to identify than direct discrimination. Indirect discrimination happens when a requirement, condition or practice – which is supposed to treat everyone equally – actually disadvantages people due to their sexual orientation, gender identity, intersex status or marital or relationship status.
For example, an organisation may have human resources policies which do not allow changes to be made to an employee’s records. This could mean that a transgender person would have to repeatedly disclose information about their gender identity to explain why it does not match their employee records.
Another example is having a policy that only applies to an employee’s husband or wife. This could be a benefit, such as discounts on travel or gym membership. Such a policy may disadvantage employees in same-sex relationships because of their sexual orientation and/or their relationship status.
Where discrimination might be found in the workplace
After you have familiarised yourself with your legal obligations, here are some areas in the organisation where you might look for discrimination.
1. Policies and procedures
Workplace policies and procedures may inadvertently discriminate against LGBTIQ+ employees. Areas you may want to consider reviewing may include HR systems, leave policies, benefits and recruitment policies and processes.
2. LGBTIQ+ awareness
Employees may not be aware of the impact that their words and actions have on their LGBTIQ+ colleagues. Decision-makers may not have considered their implicit or unconscious bias in decision-making.
3. Language
Language has a powerful impact on the way people feel and experience the world. Consider how language used in the organisation may inadvertently exclude LGBITQ+ people.
It is important to recognise that LGBTIQ+ communities are diverse and dynamic. Language in these communities is constantly evolving, and LGBTIQ+ people describe themselves in a variety of ways.
Final thoughts
LGBTIQ+ discrimination in the workplace is a major issue in Australia, with nearly half of LGBTIQ+ Australian workers having had some experience with discrimination at work. One of the best ways to avoid discrimination is to review your policies and procedures, to ensure they are inclusive and comply with the relevant laws. It can be helpful to speak directly with your employees to find out about their individual experiences at work, and what you can do to ensure that everyone is treated equally.
