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 Part 3 of Equal Opportunity Act 1984 (SA) it is illegal to discriminate on the basis of sex in the following areas:
Exemptions
There are exemptions in the following circumstances:
Areas of discrimination on basis of sex under Commonwealth law
Sex-based harassment is defined as unwelcome conduct of a seriously demeaning nature by reason of the person’s sex in circumstances in which a reasonable person would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated [Sex Discrimination Act 1984 (Cth) s 28AA].
A person is prohibited under the Sex Discrimination Act 1984 (Cth) from assisting another person, as well as actually engaging themselves, in sex- based harassment.
The Sex Discrimination Act 1984 (Cth) prohibits discrimination on the basis of sex in:
Exemptions
There are exemptions in the following circumstances:
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.
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Time limits: The Australian Human Rights Commissioner may decide not to take any action for complaints on acts committed more than 2 years (24 months) previously [Australian Human Rights Commission Act 1986 (Cth) s 46PH]. Until 12 December 2022, the time period was 6 months for any claims not being made under the Sex Discrimination Act 1984 (Cth). 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 [Equal Opportunity Act 1984 (SA) s 93]. General protections claims relating to dismissal have a 21 day time limit (from the date of notice of dismissal) in the Fair Work Commission, unless exceptional circumstances justify an extension of time [Fair Work Act 2009 (Cth) s 394]. |
Positive duty to eliminate unlawful sex discrimination
From 13 December 2022, section 47C of the Sex Discrimination Act 1984 (Cth) provides that employers and people conducting a business or undertaking must take all reasonable and proportionate measures to eliminate acts by employers, employees and agents which constitute:
This is a positive duty on employers and business operators.
The following circumstances can be taken into account in determining compliance with the duty [s 47C(6)]:
The Australian Human Rights Commission will be required to ensure compliance with the positive duty to eliminate unlawful sex discrimination and to inquire into suspected non-compliance from 12 December 2023 [s 35A, see also the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Cth)]. This provides a 12 month period during which businesses (duty holders) can take steps to comply with the duty.
The Commission is required, from 13 December 2022, to publish guidelines for complying with the positive duty in relation to sex discrimination and to undertake educational programs [s 35A].
Further information is available from the Commonwealth Respect@Work website.
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.
Legislation
What is sexual harassment?
Sexual harassment includes an unwelcome advance, an unwelcome request for sexual favours, or other 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:
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 1984 (SA) 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 [s 87]. 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 harassment under the Sex Discrimination Act 1984 (Cth) 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 [s 28A]. Circumstances to be considered include:
A person is prohibited under the Sex Discrimination Act 1984 (Cth) from assisting another person, as well as actually engaging themselves, in sexual harassment [s 28B].
From 13 December 2022, it is also unlawful for a person to be subject to a workplace environment that is hostile on the ground of sex [Sex Discrimination Act 1984 (Cth) s 28M].
Pursuant to section 527D of the Fair Work Act 2009 (Cth), from 6 March 2023 sexual harassment in the workplace is prohibited. The prohibition applies between workers, people seeking to become workers and people conducting businesses or undertakings. The definition of 'workers' means more than just 'employees', and includes other workers such as volunteers, contractors, sub-contractors, out-workers, labour hire workers, work experience students and trainees. An employer or principal can also be held liable for the conduct of their employee or agent [s 527E]. The Fair Work Commission has the jurisdiction to deal with a sexual harassment dispute, and can make an order to stop sexual harassment in the workplace if there is an ongoing risk to the worker [see Part 3-5A].
Under the Fair Work Act 2009 (Cth) sexual harassment in a workplace can also amount to serious misconduct and be a valid reason for dismissal [s 387]. For further information, see the Fair Work Commission's webpage on Sexual harassment.
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:
The coverage of Commonwealth and State law varies and advice should be sought 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. Employers also have a positive duty to take steps to prevent unlawful discrimination on the basis of sex. Under 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.
Further information about workplace sexual harassment is available from Safe Work Australia (such as the Workplace sexual harassment – advice for workers publication) and the Fair Work Commission sexual harassment section.
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 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.
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Time limits: The Australian Human Rights Commissioner may decide not to take any action for complaints on acts committed more than 2 years (24 months) previously [Australian Human Rights Commission Act 1986 (Cth) s 46PH]. Until 12 December 2022, the time period was 6 months for any claims not being made under the Sex Discrimination Act 1984 (Cth). 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 [Equal Opportunity Act 1984 (SA) s 93]. The Fair Work Commission may decide to dismiss any application made more than 24 months after the last of the alleged contraventions took place [Fair Work Act 2009 (Cth) s 527G]. |
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:
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.
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