Sex Discrimination – Behaviour vs Orientation

Under the Sex Discrimination Act 1984 (Cth), it is unlawful to discriminate against someone because of their sexual orientation. This includes terminating one’s employment based on their sexual orientation.

In the case of Bunning v Centacare, the plaintiff was an employee of the defendant which was an organisation run by the Catholic Church. In August of 2013 the plaintiff was dismissed for gross misconduct by bringing the defendant into disrepute for her associations with the Brisbane Poly Group.

The plaintiff identified as being polyamorous and begun participating and associating with a Brisbane Poly Group during the period of her employment with the defendant. The conduct engaged in by the plaintiff in relation to the group was contrary to the values of her employer and was contrary to their Code of Conduct and Policies. It was on this basis that the plaintiff was dismissed from her employment.

The pivotal argument in this case was whether polyamory was a sexual orientation for the purpose of the Act and therefore whether the defendant had discriminated against her by terminating her employment for the above reasons.

Section 4 of the Act defines sexual orientation to be an orientation toward:

  • Persons of the same sex
  • Persons of different sex
  • Persons of the same sex and persons of a different sex.

The Court held in this case, that the definition in the legislation operates in a way that confines it “to the words actually used”. The Court held that orientation, as it is defined in the legislation, is interpreted as “a state of being”, an “attraction”, and an “inclination towards”. They went further to distinguish this “sexual state of being” from its manifestation into a “sexual behaviour”.

The Court rejected the notion that a person’s behaviour is a determinant of sexual orientation and cautioned that if this were the case illegal behaviours such as paedophilia and necrophilia may have protection under such a definition. The Court maintained the view, under the legislation, that orientation is the cause of behaviour not the result of the behaviour. Their reasons for this was that “sexual orientation is something far more than how one behaves sexually” and that behaviours should be distinguished and may be treated differently to an orientation.

The Court held that polyamory is a manifestation of a state of being, a lifestyle, not a “state of being” itself. Because it is defined as behaviour not orientation, discrimination on this basis did not fall within the ambit of the Sex Discrimination Act. Because of these reasons the action for unfair dismissal on the basis of Sexual Discrimination was unsuccessful.

2 Replies to “Sex Discrimination – Behaviour vs Orientation”

  1. Hi my question is – Can a Queensland company just mandate and add our ID photo from security badge, to our Skype and Email profiles without our consent. As an employee, what recourse do I have, if I want my photo removed from Skype and email for personal reasons. When our photo was taken years ago, it was only for Operational and Site Security access. I thought my personal data including my photo could not be used under the Privacy Act. My photo on an email hardly warrants a security or operational requirement.

  2. Commonwealth privacy laws regulate the collection and handling of personal information through minimum privacy standards, known as the Australian Privacy Principles (APPs) in the Privacy Act 1988 (Cth). The APPs apply to most private sector businesses. Although some small businesses are not required to abide by Commonwealth privacy laws, all businesses should aim to comply with the APPs.

    Personal information is information that identifies a person and can include photos, given that the person is reasonably identifiable. The APPs provide higher privacy standards when organisations are handling an individual’s sensitive information. It would be best practice for employers to apply the same higher standards even where they are not covered by the Privacy Act to ensure that sensitive personal information is handled appropriately.

    However, the Privacy Act exempts the acts and practices of these employers in connection with personal information that form part of an ’employee record’. Although, the employee records exemption in the Privacy Act is more limited than many employers realise. ‘Employee records’ are defined as ‘records of personal information relating to the employment of the (current or former) employee.’

    In any case, an employer may be in breach of the Privacy Act depending on a range of factors. These include:

    – Whether the information will be considered ‘employee records’ under the Privacy Act;
    – How the employee’s personal information was collected;
    – Whether its collection/use is necessary for the employer’s functions and activities; and
    – Whether the employee was notified of the collection/use of the personal information at the time that it was collected.

    If you have further questions, please contact our team on (07) 3252 0011 to make an appointment with one of our privacy lawyers.

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