The fine cut: Small Business Employers and Anti-Discrimination Legislation

Small businesses have a litany of rules, regulations and red tape they are required to comply with, including registration and tax compliance, employee minimum entitlements, fair trading, work health and safety and privacy obligations.

Small businesses are also subject to anti-discrimination legislation which prohibits direct and indirect discrimination on the basis of a protected attribute. Australia’s federal anti-discrimination legislation prevents discrimination on the basis of:

  • Sex under the Sex Discrimination Act 1984 (Cth) (SD Act);

  • Age under the Age Discrimination Act 2004 (Cth);

  • Disability under the Disability Discrimination Act 1992 (Cth); and

  • Race under the Racial Discrimination Act 1975 (Cth).

These complex areas of anti-discrimination law are often overlooked even though non-compliance can lead to serious legal and reputational risks.

For example, earlier this year, it was reported that a sex discrimination complaint was lodged against a suburban barbershop for refusing to cut a girl’s hair. The barbershop owner refused on the basis that he was not trained to cut women’s hair and was only trained to cut men’s hair. The complaint was made to the Australian Human Rights Commission (AHRC) on the basis that the barber shop had breached the SD Act.

Discrimination under the SD Act

The SD Act specifically prohibits discrimination on the basis of sex, sexual orientation, gender identity, intersex status, relationship status, pregnancy, breastfeeding and family responsibilities.

Under the SD Act, discrimination on the basis of sex occurs when a person is treated less favourably than another person of a different sex would be treated in the same (or not materially different) circumstances.

The SD Act applies in relation to areas of public life including employment, education, the provision of goods, services and facilities and providing accommodation.

Exemptions

Exemptions from the operation of the SD Act are also available. 

For instance, it will not be unlawful to discriminate on the basis of sex in employment where there is a “genuine occupational qualification” requirement. This includes staffing for fitting rooms and where the duties of a position will include conducting clothing or body searches. Section 32 of the SD Act also provides that it will not be unlawful to discriminate where services are only capable of being provided to members of one sex, for example, for health conditions.

An organisation may also apply to the AHRC for a temporary exemption. The exemption may be granted by the AHRC and has the effect of allowing certain actions not to be unlawful. For example, an organisation may apply for an exemption where it wishes to provide certain services such as male or female-only health clinics. 

Lessons for employers

The barbershop matter settled last month and the owner was required to make a public statement that he would cut hair of any gender person if it was within his capabilities.

For small business employers, it is important that they are aware of the requirements of anti-discrimination legislation which apply to both employment and with the provision of services to customers and the possible consequences including complaints and payment of damages for breaches.

Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.

02 9256 7500 | sydney@workplacelaw.com.au

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog.

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