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Sex discrimination

This occurs where a person is treated unfavourably because of their sex or because of characteristics that people of that sex are thought to have. For example, it is sex discrimination to set inconsistent dress codes for men and women patrons at a nightclub (for example, women can wear sandals but men cannot). It is also sex discrimination to refuse to hire men in a helping profession because they are assumed to lack empathy.

Legislation:

Areas of discrimination on basis of sex under SA law

Under the Equal Opportunity Act 1984 (SA) it is illegal to discriminate on the basis of sex in the following areas:

  • education
  • employment
  • accommodation
  • sale in land
  • conferral of qualifications
  • provision of goods and services
  • membership of an association that has both male and female members

Exemptions

  • charities
  • special measures intended to achieve equality
  • sport: where strength, stamina or physique are relevant in competition
  • insurance, where based on reliable actuarial or statistical data
  • religious bodies in relation to the ordination or appointment of priests, ministers or religion or members of a religious order or in relation to training of priests, ministers, etc
  • employment not connected with an employer's business
  • employment for which it is a genuine occupational requirement that a person be of a particular sex
  • associations, where it is not practicable for a service or benefit to be used or enjoyed simultaneously by both men and women and the same or an equivalent service is provided at other times
  • single-sex associations (eg clubs and groups)
  • single-sex schools, colleges and boarding houses
  • accommodation in one's own home
  • single-sex accommodation provided by not-for-profit organisations

Areas of discrimination on basis of sex under Commonwealth law

The Sex Discrimination Act 1984 (Cth) prohibits discrimination on the basis of sex in:

  • employment
  • superannuation, regarding exercise of discretion in relation to payment of benefit
  • qualifying bodies
  • education
  • goods, services and facilities
  • accommodation
  • land
  • clubs
  • administration of Commonwealth laws and programs
  • requests for information

Exemptions

  • employment in a private household
  • employment, where it is a genuine occupational requirement of the job
  • education, single-sex educational institutions
  • accommodation
    • where person offering the accommodation or a near relative resides there and it is for no more than 3 other persons
    • where provided by a religious body
    • where provided by a charitable or other not-for-profit organisation solely for members of one sex
  • residential care of children
  • the provision of services the nature of which is such that they can only be provided to members of one sex
  • disposal of land by way of will or gift
  • religious bodies, except where that religious body is providing accommodation in connection with Commonwealth Aged Care [see section 23(3A) of the Sex Discrimination Act 1984 (Cth)]
  • educational institutions established for religious purposes
  • voluntary bodies
  • acts done under statutory authority e.g. an order of a Court or tribunal or decision made under an industrial award or agreement
  • insurance and superannuation, where based on reliable actuarial or statistical data
  • sport
  • combat duties

Making a complaint

There is no cost to lodge a complaint in either the Equal Opportunity Commission (SA) or the Australian Human Rights Commission. For forms and guides on making a complaint see the websites of the Equal Opportunity Commission and the Australian Human Rights Commission.

The Fair Work Commission can also take complaints of discrimination in work on the ground of sex. See further the Employment law chapter on general protections.

Time limits:

The Australian Human Rights Commissioner may decide not to take any action for complaints on acts committed more than 6months previously.

The Equal Opportunity Commission requires a complaint to be made within 12 months of the event being complained of, but can grant extensions of time.

General Protections claims relating to dismissal have a 21 day time limit (from the date of notice of dismissal) in the Fair Work Commission.

Same-sex couple refused hotel manager jobs

Kevin and Todd, in a same-sex relationship, applied for a position as a Hotel Managing Couple for a hotel in an Adelaide suburb. The hotel owner appeared keen to appoint them, but cancelled the interview at the last minute, making a comment about "wanting a woman behind the desk." Todd had flown from Sydney for the interview.

When Kevin and Todd made a complaint, the hotel owner denied making the comment about a woman and stated that he didn't want Todd to travel from interstate for the interview because he could not guarantee they would be successful in getting the position. He had been given a poor report by one of Kevin's referees.

Outcome: At conciliation the hotel owner agreed to pay for Todd's flight from Sydney.


Sexual harassment

Legislation

What is sexual harassment?

Sexual harassment includes unwelcome conduct of a sexual nature that a reasonable person would find offensive, humiliating or intimidating. The conduct can be spoken or written words, pictures or actions.

Common examples include:

  • making remarks about a person’s appearance or attractiveness
  • asking a person questions about their relationship or sexual activity
  • sending emails with sexual content
  • showing a person pornographic pictures e.g. on a phone or computer
  • unnecessarily touching the person

This behaviour is unlawful because it is a form of bullying or intimidation that affects a person’s ability to participate in public life.

The test under the Equal Opportunity Act used to determine whether behaviour is sexual harassment is whether a reasonable person would have expected that the other person would be offended, humiliated or intimidated by the behaviour. Behaviour that most people would regard as inoffensive will not amount to sexual harassment just because the recipient feels offended by it. Conversely, behaviour that most people would regard as offensive will not be lawful just because the person who did it thought that no-one would mind. It does not matter whether or not the person intended to give offence.

The test to decide if behaviour amounts to sexual harrassment under the Commonwealth Sex Discrimination Act is broader than the South Australian test. The Commonwealth test is whether a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated. Circumstances to be considered include:

  • the sex, age, marital status, sexual preference, religious belief, race, colour, or national or ethnic origin, of the person allegedly harassed
  • the relationship between the person harassed and the person who engaged in the conduct
  • any disability of the person allegedly harassed
  • any other relevant circumstance.

As with discrimination laws, sexual harassment laws are concerned with participation in public life and not with conduct in private life. Unwanted sexual behaviour in private life may amount to sexual assault or stalking and, if so, could be reported to the police, but it is not covered by sexual harassment laws.

Sexual harassment is unlawful:

  • in the workplace, including in job selection processes, in volunteering and in unpaid work experience.
  • in education, of students or staff, by staff or by students aged 16 years or older
  • in granting qualifications (including renewing, conferring, extending, revoking or withdrawing a qualification for a particular occupation)
  • in accommodation, including selection for accommodation
  • by the members of a committee of a club or association, against members of that club or association (South Australian law only)
  • in providing goods or services (harassment of customers by staff)
  • in receiving goods or services (harassment of staff by customers - South Australian law only)
  • in services provided by State government or in Commonwealth government programs.

The coverage of Commonwealth and State law varies and you should seek advice on this in deciding whether to complain to the Equal Opportunity Commission or the Australian Human Rights Commission.

Under both Commonwealth and State law, employers will be legally responsible for sexual harassment in their workplaces unless they can show that they have taken reasonable steps to prevent it. In South Australian law, an employer can be responsible for harassment by a third party who visits the workplace, if it had been reported and the employer did not take reasonable action to stop it recurring.

Making a complaint

Complaints can be made to the Australian Human Rights Commission or the Equal Opportunity Commission. There is no cost to lodge a complaint in either the Equal Opportunity Commission of South Australia or the Australian Human Rights Commission. For forms and guides on making a complaint see the websites of the Equal Opportunity Commission and the Australian Human Rights Commission.

Sexual harassment in the workplace can also be classed as workplace bullying and be dealt with by either SafeWork SA or the Fair Work Commission - see further the Employment chapter on Bullying.

Time limits:

The Australian Human Rights Commissioner may decide not to take any action for complaints on acts committed more than 6 months previously.

The Equal Opportunity Commission normally requires a complaint to be made within 12 months of the event being complained of but can grant extensions of time.

D Andrea v Wayne Jaye and Studio Silva Photography

Ms D'Andrea accepted contract work as a photographer for a local photography studio. On her second day at the studio, Ms D'Andrea was asked by her employer (Mr Jaye) if she would like to go interstate with him. When she asked if the trip was work related, Mr Jaye said, "It could be".

Ms D'Andrea made a sexual harassment and sex discrimination complaint against Mr Jaye, claiming that he:

  • asked her to dinner
  • commented on her appearance on numerous occasions
  • asked questions and made comments about her relationship
  • told her that they were meant to be together, and that she had feelings for him but could not express them
  • prevented her from leaving the company premises so he could talk to her for longer
  • commented on her underwear and lifted up her jumper
  • asked her to trade trousers with him and remove her jumper while on a location shoot
  • slapped her bottom

A conciliation conference between the parties was held, but settlement negotiations broke down when Mr Jaye did not respond to contact from the Commission.

The matter was then referred to the Tribunal.

Mr Jaye did not appear at the Tribunal.

The Tribunal found that Ms D’Andrea was entitled to a total of $22,000 compensation, which included lost wages and $10,00 for stress and humiliation caused by the harassment.


Sex discrimination  :  Last Revised: Wed Mar 21st 2018
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.