We will explore the latest protected attributes in Australia and their implications under the Fair Work Act, including breastfeeding, gender identity, and intersex status.

With so many changes to the Fair Work Act in the last eighteen months, hiring managers and people leaders may have missed some. In December 2022, Australia recognised and introduced three new protected attributes to ensure equal rights and protections for individuals with unique characteristics. These new protected attributes include breastfeeding, gender identity, and intersex status.

What are the protected attributes in Australia?

Protected attributes in Australia refer to characteristics or traits protected by law to ensure equal treatment and opportunities for all individuals. These attributes are identified as being particularly vulnerable to discrimination and prejudice. By protecting these attributes, Australia aims to create a society where everyone can fully participate and thrive, regardless of their differences.

The protected attributes under the Fair Work Act are now race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction, social origin, breastfeeding, gender identity, intersex status and experiencing family and domestic violence. These attributes are safeguarded by anti-discrimination laws and legislation that prohibit unfair treatment or discrimination on these grounds.

Understanding and respecting protected attributes is crucial in promoting a diverse, inclusive, and equitable society. It requires individuals and institutions to challenge stereotypes, biases, and prejudices and to actively work towards creating an environment where everyone feels valued and accepted.

The introduction of new protected attributes, such as breastfeeding, gender identity, and intersex status, has had a significant impact on the rights and protections afforded to individuals in Australia.

Pregnancy and Breastfeeding

By recognising breastfeeding as a protected attribute, the Australian government acknowledges the importance of supporting and accommodating breastfeeding mothers. This extends protections for mothers beyond pregnancy and recognises the benefits of breastfeeding to individuals' health and the well-being of their children.

Examples of discrimination may include:

• an employer not selecting the most qualified person for a role because they are pregnant or breastfeeding
• an employer refusing to provide a private, clean space for a mother to express breast milk
• an employer dismisses an employee when they tell their manager they’re pregnant
• a pregnant staff member being pressured not to take time off to attend scheduled check-ups
• refusing to consider reasonable adjustments, such as allowing a pregnant staff member to sit while working
• an organisation restructuring its roles to make a pregnant woman redundant

This recognition helps ensure breastfeeding mothers are not unfairly treated or discriminated against in various aspects of their lives, including employment, education, and public spaces.

Gender Identity & Intersex Status

The recognition of gender identity as a protected attribute aims to promote the rights and well-being of transgender and non-binary individuals to live authentically and be treated with dignity and respect. This means that individuals who identify as a gender different from the sex assigned to them at birth are protected from discrimination and prejudice.

The recognition of intersex status as a protected attribute acknowledges the unique needs and experiences of intersex individuals; those born with biological variations in their sex characteristics that do not fit typical binary notions of male or female due to physical, hormonal or genetic features. It promotes understanding and respect for their rights and helps create a society that values and supports diversity in sex characteristics.

Discrimination is when someone treats you unfairly, including bullying you, because of your gender identity or intersex status. Examples of discrimination may include:

• application forms that ask for binary gender options
• refusing to call someone by their preferred name or use their preferred pronouns
• refusing to let someone use the toilets that align with their gender identity
• passing over someone for a job or promotion because of their gender identity

Where an employee does disclose their intersex status to the employer, it should be assumed confidential. Workplace discrimination and malicious gossip can be damaging and traumatic, creating a very hostile environment for anyone exposed to such behaviours, which may include questioning an individual’s gender, asking inappropriate questions or using inappropriate terminology to refer to the person.

Please note that the Equal Opportunity Act contains some exceptions that mean it’s not against the law to discriminate in specific circumstances, such as where there is a real risk to someone’s health, safety, or property. We acknowledge that navigating these new protected attributes may be challenging for organisations, particularly as the courts will determine their application over time. This means employers may face situations where there are no clear answers yet regarding how to proceed.

Overall, these recent changes to protected attributes reflect Australia's commitment to equality, inclusivity, and human rights. However, they can also intersect with psychosocial hazards, which under Workplace Health and Safety laws, all Australian workplaces have an obligation to minimise risks to exposure.

If you need assistance updating policies, procedures and training related to protected attributes, contact our Workplace Relations team today or call 03 9864 6000.