As of December last year, employees who feel they’ve been discriminated against for their gender identity or intersex status, or for breastfeeding in the workplace, have more power for legal recourse. As of 7 December 2022, three new protected attributes were added to the Fair Work Act: breastfeeding, intersex status and gender identity. This means employees now have more recourse if they feel they’ve been discriminated against or treated differently due to either of these attributes.

Employees who experienced adverse action due to breastfeeding, their intersex status or their gender identity will now be able to make a complaint to the Fair Work Commission.

How will this work?

Employees who believe they have been unlawfully discriminated against may be eligible to request assistance from the Fair Work Ombudsman. If an employee alleges a contravention of the discrimination protection provisions of the FW Act, they may seek remedies including injunctive relief, reinstatement, backpay, compensation and other orders. The remedies available to employees under the FW Act are broader and more protective of their positions, and the existence of civil penalties achieves broader deterrence.

Exceptions to keep in mind

The Sex Discrimination Act contains a number of exceptions, including when an employee’s role involves fitting members of the same sex into clothing or providing welfare services exclusively to people of the same sex.

What comes next?

Employers should ensure their internal policies are up-to-date to include the new inclusions in the Fair Work Act, and that leaders are educated to ensure they don’t breach these new rules.