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.
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:
Areas of discrimination on basis of sex under Commonwealth law
The Sex Discrimination Act 1984 (Cth) prohibits discrimination on the basis of sex in:
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.
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.
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.
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:
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:
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 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.
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.
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.