29 July 2016
Hi
Is it discriminatory to refuse to promote an employee on the basis that the promotion would result in the employee working for a person she is dating?
Would the above be caught by discrimination based on marital status?
Kind regards
Thank you for the question.
Based on the limited information provided, it would seem that the grounds for refusing to promote the employee would not fall within the operation of the Anti-Discrimination Act 1991. Although section 7(b) expressly prohibits discrimination on the basis of relationship status, it appears that it is the specific relationship between the two individuals and the possible effect that this may have on the employer’s business that is the basis of the employer’s decision, and not relationship status generally.
There is very little case law on discrimination on the grounds of relationship status, and it is largely confined to a spouse being denied employment on the grounds that their partner works for a rival business and the associated confidentiality concerns. See the NSW cases of Boehringer Ingelheim v Reddrop [1984] 2 NSWLR 13 and Waterhouse v Bell (1991) 25 NSWLR 99 for further guidance. The court in Reddrop held that the relationship status ground did not extend to cover discrimination based on the identity or situation of one’s spouse and that it was limited to discrimination against a person 'simply because they are married and for no other reason'.
An enquiry into the specific reasons of the employer for refusing to promote the employee may reveal some further ground which may be caught by the Act.
Regards
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