We have a further article entitled ‘Discrimination: age, sex, race, disability and equal opportunities’ which covers a broader spectrum of discrimination.
Sex Discrimination Act 1984
The Sex Discrimination Act 1984 makes it unlawful to discriminate against a person because of their sex, marital status or because they are pregnant or might become pregnant. It is also against the law to dismiss a person from their employment because of their family responsibilities. The Act promotes recognition and acceptance within the community of the principles of equality for women and men.
The Sex Discrimination Act 1984 aims to ensure that women and men across Australia are treated equally and have the same opportunities.
It protects people from discrimination on the grounds of sex, pregnancy and marital status, as well as protecting workers with family responsibilities. The Act also makes sexual harassment against the law.
The Act gives effect to Australia’s international obligations under the Convention on the Elimination of All Forms of Discrimination against Women.
What is sex discrimination?
There are two types of discrimination, whether sexual or not:
- Direct discrimination (in this example direct sexual discrimination) means being treated less favourably because of one's sex, marital status, pregnancy or the potential to become pregnant. It would be direct sex discrimination if a company paid men more than women who are doing the same work. It would also be sex discrimination if a bank refused to approve a loan because the applicant was an unmarried or divorced woman (direct discrimination on the basis of marital status);
- Discrimination also happens when there is a condition, requirement or practice imposed which appears to treat everyone the same but disadvantages a person because of their sex, marital status, pregnancy of potential pregnancy. If the requirement is unreasonable, it could be indirect discrimination. Of course this is the more common type because it is easier to ‘get away with’;
- An example might be a policy that says only full-time workers will be promoted might disadvantage women who are more likely to work part-time because of family responsibilities. If the requirement to work full-time was not reasonable it would be indirect sex discrimination.
Pregnancy discrimination occurs when a woman is treated less favourably than another person simply because she is pregnant or because she may become pregnant. Indirect pregnancy discrimination may also happen when someone imposes a requirement (a rule, practice or procedure) which appears to treat everyone the same but disadvantages a woman because she is pregnant or may become pregnant in the future. This could be indirect pregnancy discrimination if it it’s not reasonable.
Pregnancy discrimination could be any one or more of the following:
- Refusal of employment or promotion;
- Dismissal or retrenchment;
- Exclusion from a training course;
- Reduction in hours of work;
- Transfer to another position when there are no valid safety or medical reasons;
- Demotion or reduction in seniority;
- Refusal of accommodation, goods or services;
- Exclusion from an educational institution.
What is sexual harassment?
Sexual harassment is an unwelcome sexual advance, unwelcome request for sexual favours or other unwelcome conduct of a sexual nature which makes a person feel offended, humiliated and/or intimidated, where a reasonable person would anticipate that reaction in the circumstances. It is common in a workplace and often goes unreported. Note the repetition of the word ‘unwelcome’. Where the advances etc are welcome, this is not sexual harassment.
The Sex Discrimination Act defines the nature and circumstances in which sexual harassment is unlawful. It is also unlawful for a person to be victimised for making, or proposing to make, a complaint of sexual harassment to the Human Rights and Equal Opportunity Commission.
Whether the behaviour is unwelcome is a subjective test: it looks at how the conduct in question was perceived and experienced by the recipient, rather than the intention behind it.
Whether the behaviour was offensive, humiliating or intimidating is an objective test: it looks at whether a reasonable person would have anticipated that the behaviour would have this effect.
Examples of sexual harassment
Sexual harassment in the workplace can take various forms. It can involve:
- Staring, leering or unwelcome touching;
- Suggestive comments or jokes;
- Sexually explicit pictures or posters;
- Unwanted invitations to go out on dates;
- Requests for sex;
- Intrusive questions about a person's private life or body;
- Unnecessary familiarity, such as deliberately brushing up against a person;
- Insults or taunts based on sex;
- Sexually explicit physical contact;
- Sexually explicit emails or SMS text messages.
Both men and women can be victims of sexual harassment; however, it is most commonly experienced by women.
When is sexual harassment prohibited?
Sexual harassment is prohibited in all work-related activity. For example, sexual harassment is prohibited at the workplace, during working hours and at work-related activities such as training courses, conferences, field trips, work functions and office Christmas parties.
A working environment or workplace culture that is sexually 'hostile' will also amount to unlawful sexual harassment. Some of the factors which may indicate a potentially hostile environment include the display of obscene or pornographic materials, general sexual banter, crude conversation or innuendo and offensive jokes.
Some types of sexual harassment can also be criminal offences. These include:
- Physical molestation or assault;
- Indecent exposure;
- Sexual assault;
- Obscene communications (telephone calls, letters, etc).
Who is responsible?
A person who sexually harasses is primarily responsible for the sexual harassment under the Sex Discrimination Act. However, in many cases, employers and others can be held responsible for acts of sexual harassment done by their employees or agents.
Employers may limit their liability if they can show that they took 'all reasonable steps' to prevent the sexual harassment occurring. 'Reasonable steps' may include policies and procedures designed to create a harassment-free environment. It could also include procedures to deal with allegations of discrimination made by employees or customers. To be effective, policies must be well implemented, including through the provision of ongoing training, communication and reinforcement.
Preventing sexual harassment
Sexual harassment continues to be a serious issue in workplaces across Australia. Young women can be especially vulnerable to sexual harassment from their older, male managers or co-workers.
There are a number of simple steps that employers should take to prevent and respond to sexual harassment, such as:
- Having a workplace policy on sexual harassment;
- Butting in place a process for dealing with complaints;
- Training employees to identify and deal with sexual harassment.