Sex Discrimination – Behaviour vs Orientation

by Andrew Lind on 3 July, 19

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.

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