3 February 2016
Elizabeth Kenny, Associate
A new year brings new challenges and opportunities for employers, particularly in dealing with a diverse cross section of employees in the workplace. This article aims to explore some cultural issues in the workplace that have attracted attention in recent times and provide useful strategies for organisations to minimise legal exposure and develop an inclusive culture.
The role employers can play in supporting victims of domestic violence has been an important public policy question and employers may wish to consider taking a proactive role in developing strategies to support not only victims of domestic violence but also those who are supporting victims of domestic violence. This conversation is likely to consider the impact of domestic violence on the workplace and the ways in which employers can provide support to those affected by domestic violence through policies, employee support systems and workplace initiatives.
Another matter increasingly requiring the careful consideration by employers involves managing the transition or integration of transgender employees in the workplace. Many will remember 2015 as a defining year for transgender members of society with various celebrities and public figures publically announcing their support for transgender persons or sharing their own experiences as a transgender person. Employers may wish to consider how they can accommodate transgender employees in their organisation given that traditional workplaces pose particular challenges for transgender employees.
RESPONDING TO DOMESTIC VIOLENCE
The Australian Bureau of Statistics estimates that 17% of women aged 18 years and over and 5.3% of all men aged 18 years and over had experienced violence by a partner during the year 2012.1 This tragic and staggering number inevitably touches all aspects of life, including the workplace. While Australia has developed domestic violence services and corresponding legal protections, until recently, these measures have primarily been criminal in nature.
Recent law and policy measures have sought to address the broader range of harms associated with domestic violence and corresponding protections. Importantly, the financial security for victims of domestic violence has increasingly been recognised as critical to the safety of the victim and the victim’s ability to escape a violent relationship. However, the difficulty for employers lies with many victims being reluctant to disclose their status and receive the support needed. It is in light of this that many companies have taken a proactive stance in relation to domestic violence, with companies such as NAB and Telstra implementing large scale initiatives to support victims of domestic violence including the allowance of extra days off and consideration of flexible working arrangements to accommodate the victim to continue to work despite their personal circumstances.
Victims of domestic violence and employees supporting a member of their immediate family who is experiencing domestic violence have a statutory entitlement to request a flexible work arrangement. While this entitlement does not automatically grant the employee a flexible work arrangement, it recognises the importance of supporting victims and making sure that victims stay in paid work. Paid leave associated with domestic violence is also becoming increasingly common in enterprise agreements as discretionary leave, however, the right to domestic violence leave may become a legal entitlement for employees covered by modern awards, with the Australian Council of Trade Unions recently applying to the Fair Work Commission in relation to their modern award review process to vary all awards to include 10 days’ paid domestic violence leave.
In addition, employers may also consider implementing safety measures designed to protect victims, including increased physical and cyber security where it is known that an employee is subject to domestic violence and measures that alert security if the perpetrator wants to contact or visit the employee and help ensure that any abusive contact is restricted by managing emails and phone calls.
Transgender discrimination in the workplace is deemed to be unlawful under various pieces of anti-discrimination legislation, including the Sex Discrimination Act 1984 (Cth). Employers therefore have a legal responsibility to take all reasonable steps to prevent discrimination and harassment in the workplace, or they may be found to be vicariously liable for any workplace discrimination or harassment engaged in by their employees.
Employers must be aware that there is an important distinction between the legal rights in the workplace of those who identify as transgender and those who are legally a “recognised transgender person” (that is, recognised at law as their identified gender rather than their birth gender). For example, if a transgender person who was born as a male but identifies as a female applies for a role that is open to females only, the employer cannot be required to give the role to the transgender person as they are not considered to be female in a legal sense.
It is important that employers consider how they can best manage hostile reactions and ensure their workplace behaviour policies reflect the organisation’s stance on having an inclusive environment and train employees on their obligations under anti-discrimination law. For example, some employees may express their discomfort or openly oppose transgender employees using facilities that are appropriate for their affirmed gender. Transgender employees should be able to use toilets, change rooms and other facilities that are appropriate to their affirmed gender when they commence transition. Employers may also consider working with individual transgender employees to develop transition plans specific to the individual employee which can include strategies on how the employee wishes to be addressed, how the matter will be addressed with colleagues in the workplace and any other matters relevant to each individual case.
Issues for Consideration
There are a number of issues that we recommend an employer consider in determining how best to manage transgender employees in the workplace, not only for the transgender employee, but all employees who may be impacted by the transition of existing transgender employees, or integration of new transgender employees.
- Do any administrative changes need to be made to reflect the transgender employee’s preferred gender such as email accounts, mailing lists, or other documentation?
- Does your organisation need to engage in any communications or education with internal and/ or external stakeholders to manage the transition or integration of the transgender employee into the workplace and to raise awareness of relevant issues?
- Does the transgender employee wish to use toilets or other facilities that are designated to the gender with which they identify? What reasonable accommodations may be made to facilitate use of those facilities by the transgender employee?
- What additional support or assistance could or should your organisation provide for the transgender employee or other employees to assist with the transition or integration?
Responding to domestic violence, particularly the impact of domestic violence on an employee and the workplace, and the management of the integration or transition of transgender employees are sensitive issues that require careful consideration by an organisation. Employers must acknowledge that there is no “one size fits all” approach to matters that involve an employee’s personal circumstances and the organisation must ensure it has a clear process and structure on dealing with sensitive matters in a supportive and inclusive manner. In managing and supporting employees during difficult times or times of change, an organisation will also benefit through retention of key staff and the development of an inclusive and diverse culture.
1 The Australian Bureau of Statistics Personal Safety Survey 2012, Experience of Partner Violence (http://www.abs.gov.au/ausstats/abs@.nsf/Latestprod…)