Most employees and employers know that discrimination and harassment on the basis of sexual orientation is unlawful in the workplace.
But it's not always so easy to know when you see or experience discrimination. It's also not easy to know how to prevent unlawful discrimination.
Victorian Equal Opportunity legislation prohibits both "direct" discrimination (e.g. being treated unfavourably because of a "protected attribute" such as sexual orientation) and "indirect" discrimination (e.g. where an unreasonable condition is imposed that causes disadvantage to you because of your sexual orientation) in most Victorian workplaces. The exceptions are religious bodies and schools which, as the law currently stands, are generally permitted to discriminate on the basis of sexual orientation.
However, in most workplaces legal redress is available for discrimination on the basis of sexual orientation. So, what should you do if you experience discrimination?
First, sometimes people engage in unlawful discrimination out of ignorance. Providing information and explaining the effect of their behaviour can fix the problem and help that person develop their understanding of the world around them.
But discrimination is not always unintentional and can't always be fixed by a quiet word.
If you find yourself in this situation, it's helpful to take written, dated notes of any incidents of discrimination. Sending an email to yourself is an easy way of proving that your notes were made at the time of the incident or soon after, which makes them more likely to be believed. Seek help from management and human resources and use the complaints procedures available to you in your workplace.
Unfortunately, there are also some instances where it simply is not possible to resolve your concerns internally.
You may then want to consider lodging an application with the Victorian Equal Opportunity and Human Rights Commission, or with the Human Rights Division of the Victorian Civil and Administrative Tribunal (VCAT). While litigation is always stressful, VCAT is more user-friendly than some of the courts and there is no need to obtain legal representation if you don’t want to do so - although it's generally a good idea to get some legal advice so that you understand how the law is likely to operate in your circumstances and what you might be able to achieve as an outcome.
Georgina Taylor, Lawyer
Patrizia Mercuri, Partner
Georgina Taylor | Lawyer
Workplace Relations & Safety
+61 3 9269 9649
Patrizia Mercuri | Partner
Workplace Relations & Safety
+61 3 9269 9319
All information in this article is of a general nature only and is not intended to be relied upon as, nor to be a substitute for, specific legal professional advice. No responsibility for the loss occasioned to any person acting on or refraining from action as a result of any material published can be accepted