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Sex Discrimination

The idea that the sexes should be treated equally under the law has become so widely accepted that it is easy to forget that sex discrimination laws were introduced relatively recently. The US passed laws prohibiting discrimination on the basis of sex in the 1970s. Australia followed, with the federal Sex Discrimination Act being passed in 1984.

Prior to the passage of the Sex Discrimination Act, employers could refuse to hire women or terminate women on the basis that they were getting married or had become pregnant. A married woman could not obtain a passport without permission from her husband.

The Sex Discrimination Act makes it unlawful to discriminate against a person on the basis of their sex, gender identity, sexual orientation, pregnancy, marriage or relationship status or intersex status. It also makes sexual harassment unlawful. However, women still experience inequality and discrimination in many areas of life, such as lower pay, sexual harassment and gender-based violence.

What is sex discrimination?

Under Section 5 of the Sex Discrimination Act 1984, a person discriminates against another person on the basis of sex if they treat the person less favourably than they would treat a person of a different sex in circumstances that are not materially different because of

  • The person’s sex;
  • A characteristic that appertains generally to person of the sex of the aggrieved person;
  • A characteristic that is generally imputed to person of the aggrieved person’s sex.

A person also discriminates against a person on the basis of sex if the person imposes a condition, requirement or practice that is likely to have the effect of disadvantaging persons of the aggrieved person’s sex.

The act also makes it unlawful to discriminate on the basis of any of the following attributes or on the basis of a characteristic that appertains or is imputed to people with that attribute:

  • Sexual orientation (Section 5A);
  • gender identity (Section 5B);
  • intersex status (Section 5C);
  • marital or relationship status (Section 6);
  • pregnancy or potential pregnancy (Section 7);
  • breastfeeding (Section 7AA);
  • family responsibilities (Section 7A)

Reasonableness test

Section 7B provides that a person does not discriminate if the condition, requirement or practice imposed is reasonable in the circumstances. What is reasonable is to be determined by reference to:

  •  the nature and extent of the disadvantage resulting from the condition, requirement or practice; and
  • the feasibility of overcoming or mitigating the disadvantage; and
  • whether the disadvantage is proportionate to the result sought by the imposition of the condition, requirement or practice.

Special measures

The act allows for a person to take special measures to achieve equality between the sexes or between persons with different attributes covered by the act. Such measures do not amount to discrimination if they are imposed solely or partly for the purpose of achieving equality. Special measures may include affirmative action programs such as the imposition of gender quotas in a workplace.

Prohibition of sex discrimination

The act provides that a person must not discriminate on the basis of sex in any of the following areas:

  • in work, including employment, superannuation, commission agents, contract workers, partnerships, qualifying bodies, registered organisation or employment agencies;
  • in the provision of education;
  • in good, services or facilities;
  • in the provision of accommodation;
  • in the disposal of land;
  • in the membership of clubs;
  • in the administration of commonwealth laws and programs.

Sexual harassment

The act also prohibits sexual harassment in any of the above-listed areas. Sexual harassment occurs when a person makes an unwelcome sexual advance or engages in unwanted sexual behaviour in circumstances where a reasonable person would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.

The circumstances to be taken into account in determining whether a reasonable person would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated include:

  • the harassed person’s age, sexual orientation, gender identity, intersex status, relationship status, religious belief, race, colour, or national or ethnic origin;
  • the relationship between the person harassed and the person who made the advance or who engaged in the conduct;
  • any disability of the person harassed;
  • any other relevant circumstance.

Making a complaint

When a person experiences sex discrimination or sexual harassment, they may complain to the Australian Human Rights Commission. Complaints can be made online or by post. The Commission assesses, investigates and conciliates complaints about discrimination. It will usually need to provide a copy of your complaint to the person or entity you are complaining about.

If your complaint proceeds to conciliation, the parties will be invited to talk over the issues with an impartial person who will assist them to arrive at an appropriate solution. Outcomes can include an apology, reinstatement to a job, changes of policy or compensation for lost income.

If a complaint cannot be satisfactorily resolved at conciliation, a party can make an application to the  Federal Court of Australia. Your complaint to the Commission must be terminated before your application can be filed. You must file a copy of the notice of termination with your application. Applications must generally be made within 60 days of the date of the notice of termination.

Is the battle won?

The Sex Discrimination Act has gone a long way towards establishing gender equality in Australia. It has given effect to our international obligations under human rights laws such as the Convention on the Elimination of all form of Discrimination Against Women (CEDAW). However, the Australian workforce is still highly segregated along gender lines, with women over-represented in low-paid industries and in insecure work. More than half of Australian women aged over 18 have experienced sexual harassment at some stage in their life and one in three Australian women have experienced sexual or physical violence.

In 2017, Australia was ranked 35th in a global ranking for gender equality, scoring low in the areas of economic participation and political empowerment. In recent years, there have been calls for gender quotas to be introduced in parliament, as has occurred in more than 100 other countries.

If you require legal advice or representation in a sex discrimination matter or in any other legal matter, please contact Go To Court Lawyers.

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