Sexual discrimination in the workplace is when a person is treated differently than a person of a different sex would be in a similar situation. It works on the premise that all people, regardless of their gender, have the right to be treated equally and have the same opportunities. Sexual discrimination in the workplace might be different pay grades for men compared to women or less likelihood of promotion due to gender. Under the Sex Discrimination Act 1984, sexual discrimination in the workplace is considered a type of harassment that businesses have a positive duty to eliminate. In this article we will explain what sexual discrimination is in the workplace, examples of sexual discrimination in the workplace, the laws, your rights, what you can do, and potential consequences of sexual discrimination.
What is Sexual Discrimination in the Workplace?
Also known as gender discrimination, sexual discrimination in the workplace comes in many forms but it generally means that an employee or job applicant is treated differently or less favourably because of their sex, gender identity, or sexual orientation. As with all discrimination, sexual discrimination is based on the assumption or stereotype about the abilities or traits of a particular gender. In the workplace, sexual discrimination creates gender inequality and imbalance.
Examples of Sexual Discrimination in the Workplace
When a person is treated unfairly at work because of their gender, it is known as sexual discrimination. Sexual discrimination can be direct like when a male is doing the same work as a female but getting paid more. It can also be indirect when policies state a certain uniform must be worn but a pregnant woman cannot wear it. Other examples of sexual discrimination in the workplace include:
- Not employing a woman because the boss doesn’t think she will fit the male dominated workplace even though she has the same qualifications and skills
- Policies that insist women wear different clothes to the men in the workplace
- Offering different pay rates for men and women for the same role
- Being punished for a behaviour that other staff members of a different gender do without retribution
- Being insulted or called derogatory names because of gender
- Being evaluated differently in performance reviews because of gender. This could mean being held to higher standards or expectations than people of the opposite sex
- Being stereotyped because of gender by the assumption you are less capable or less committed than those of the opposite sex
- Being treated differently because of pregnancy. For instance, not being hired or promoted and, in some cases, fired due to pregnancy
- Being subjected to unwelcome sexual advances because of gender
How Does the Law Protect Against Sexual Discrimination in the Workplace?
The law does protect against sexual discrimination in the workplace by ensuring all organisations and businesses take reasonable and proportionate measures to prevent unlawful acts in the workplace or in relation to the workplace. This is known as the positive duty and was created under the Sex Discrimination Act 1984 as a legal obligation of employers to proactively prevent any type of sexual discrimination in the workplace. Under the Act, people are protected from being treated unfairly based on their sex, sexual orientation, gender identity, intersex status, marital or relationship status, or if pregnant, breastfeeding, or with family responsibilities.
To comply with the positive duty, employers must be proactive in addressing any risk factors of unfair behaviour like sexual discrimination in the workplace, rather than simply reacting to complaints. This means that employers now need to review their policies and procedures to make sure they are compliant with the Sex Discrimination Act and the positive duty obligations.
Are There Any Exceptions to the Law?
While it is against the law to discriminate against someone because of their gender or sexual identity, there are some situations where exceptions might apply. Discrimination because of disability, pregnancy or physical features will not be against the law where it is necessary to protect the health and safety of any person, including the person being discriminated against. For example, it is not considered sexual discrimination if an employer limits an activity of a pregnant woman if there is a risk to her health and safety or those around her.
What To Do If You Are Sexually Discriminated in the Workplace
If sexual discrimination occurs in the workplace, an employee or potential employee has the right to make a complaint. Initially the person who has been sexually discriminated against may want to address the issue with the person or people involved. If the issue is not resolved or the complainant is not comfortable doing this, a more formal option is a complaint to the Australian Human Rights Commission (AHRC). This can be done by the person who has experienced sexual discrimination or via a lawyer or union representative.
A complaint to the AHRC must be put in writing, either online or via a form posted to the commission. The complaint will only be valid if there is a reasonable argument that the events have been an unlawful discrimination under the Sex Discrimination Act. There must be sufficient details to describe what happened, who was involved, the date and where it happened.
Once the complaint has been received by the commission, it is assessed to determine whether it qualifies as unlawful discrimination under the Act. If so, the commission can investigate and try to resolve the issue by conciliation. This is an informal process where the complainant and respondent discuss the issues with a mediator who tries to resolve the complaint. If the complaint is not resolved, the complainant may decide to take the complaint to the Federal Court of Australia.
What Are Employers Responsibilities in Relation to Sexual Discrimination in the Workplace?
Employers have a responsibility to take reasonable and proportionate measures to eliminate sexual discrimination in the workplace. The Anti-Discrimination and Human Rights Legislation (Respect at Work) bill introduced a new positive duty in 2022. This positive duty means that businesses and organisations have a legal obligation to prevent unlawful conduct from occurring in the workplace or in connection to work. This refers to sexual discrimination, sexual harassment and any other unlawful conduct that creates hostile working environments and victimisation. Employers must now take proactive steps to educate employees and prevent sexual discrimination and other unlawful behaviours to ensure a respectful and inclusive workplace.
There are seven standards that employers must follow to comply with the positive duty. They are actions to be taken to prevent and respond to discrimination, sexual harassment and victimisation. Each standard has expectations of what an organisation is required to do and suggested actions on how an employer can achieve these expectations. The standards an organisation needs to meet in order to comply with the positive duty are:
- Leadership: Senior leaders in an organisation are ultimately responsible for the governance of the positive duty and ensuring legal compliance of the business. They are responsible for ensuring that appropriate measures for preventing and responding to relevant unlawful conduct are developed, recorded in writing, communicated to workers and implemented. They need to regularly review the effectiveness of these measures and update workers. As a senior leader, they must be visible in their commitment to safe, respectful and inclusive workplaces that value diversity and gender equality. They set clear expectations and role model respectful behaviour.
- Culture: Organisations must foster a culture that is safe, respectful and inclusive. Every business needs to show that they value diversity and gender equality. By providing this safe and respectful culture, workers are empowered to feel safe reporting any unlawful conduct.
- Knowledge: Businesses and organisations must develop, communicate and implement a policy regarding respectful behaviour and unlawful conduct with employees. They need to support and encourage workers, including managers and leaders, to engage in safe, respectful and inclusive behaviour through education. By providing the knowledge of expected standards of behaviour, identifying unlawful behaviours, rights and responsibilities, a business can help prevent and respond to unlawful conduct.
- Risk Management: Organisations and businesses must recognise that relevant unlawful conduct is an equality risk and a health and safety risk. They need to take a risk-based approach to prevention and response which means regularly identifying and assessing the risk of relevant unlawful conduct occurring, as well as the impact that it might have on the health and safety of those affected.
- Support: Businesses must always offer support to employees. Appropriate support must always be available to workers who experience or witness relevant unlawful conduct. It is the responsibility of the business to let people know what support is available and how to access it.
- Reporting and Responding: It is the responsibility of the employer to ensure that appropriate options for reporting and responding to relevant unlawful conduct are provided and regularly communicated to workers. If unlawful conduct has been reported, the response of the business must be consistent and timely.
- Measuring and Monitoring: Any data collected by the business and organisation regarding unlawful conduct must be regularly assessed, measured and monitored to keep accurate records of the workplace. This data is then used to develop further measures to prevent sexual discrimination and other unlawful activity in the workplace.
Sometimes sexual discrimination does occur in the workplace. When a person of one gender is treated differently than a person of the other gender, it is called discrimination. It is up to businesses and organisations to put measures in place to prevent this type of discrimination and provide a safe and inclusive work environment. We have explained what sexual discrimination is and how to recognise it, as well as the responsibility of employers to prevent sexual discrimination in the workplace.
