Discrimination Down under: Lessons from the Australian Experience in Prohibiting Employment Discrimination on the Basis of Sexual Orientation

Australia offers greater legislative protection against employment discrimination on the basis of sexual orientation than does the United States. This difference is not due to greater social or political awareness on the part of Australians. Rather, Australian federal law results from the work of progressive national committees given wide discretion to address discrimination under international agreements to which Australia is a party. The creation of Australian federal laws is not instructive in the U.S. context because the limited scope of these laws is incompatible with American discrimination statutes. Furthermore, the process by which sexual orientation became a proscribed ground under Australian federal laws is unlikely to occur in the United States. In contrast, Australian state and territory laws addressing gay rights are often the result of political compromise and frequently reflect familiar prejudices. While such legislation is clearly less than ideal, it indicates that a strategy of compromise can be successful in establishing protection against discriminatory employment practices. In this respect, those working to extend protection against employment discrimination on the basis of sexual orientation in the United States would be served by taking note of the Australian state and territory experience