Times have changed, and what might have passed for acceptable treatment of female employees 50 years ago could now have you up before a court.

While some may feel beleaguered or oppressed by ‘political correctness’, there is nevertheless a groundswell of recognition that fair work must include gender equity. 

Sex discrimination and the law 

Under the Sex Discrimination Act 1984, it’s illegal to discriminate against a person because of their sex, gender identity, intersex status, sexual orientation, marital or relationship status, family responsibilities, because they’re pregnant or might become pregnant, or because they’re breastfeeding. 

Sex discrimination in employment occurs when someone is treated less favourably than a person of the opposite sex would be treated in the same or similar circumstances. This can easily happen if people hold onto old stereotypes about what sort of work women are capable – or not capable – of performing. 

For example, not hiring a woman because the employer thinks she won’t fit into a ‘traditionally’ male workplace, or not paying a woman the same salary as a man for doing the same work, or not providing the same opportunities for training, mentoring or promotion would all amount to sex discrimination. 

The law also prohibits sex discrimination in the provision of services to customers and clients. 

‘Indirect discrimination’ can occur when employers put in place conditions, requirements, or practices that seem at face value to treat everyone equally, but which actually disadvantage some people because of their sex, marital status, breastfeeding, pregnancy, or potential pregnancy. If the condition or requirement is unreasonable, it could count as discrimination under the law. 

Affirmative action 

‘Affirmative action’ refers to special measures that aim to foster greater equality by giving people who’ve faced entrenched discrimination similar access to opportunities as those available to others in the community. Such measures are allowed under federal anti-discrimination laws. 

While the effectiveness of affirmative action programs is regularly challenged, with allegations that promotion and opportunities have been given to women or lesser merit than male candidates, the bigger picture shows that the situation where women tend to be employed in a narrow range of the workforce – with lower pay rates – has not necessarily improved since equal employment opportunity and affirmative action policies were introduced. Women still have unequal access to salary, superannuation, and permanency of employment. 

The hope is that a total package of commitments to gender equity, addressing issues such as access to education and training, salary, flexible working conditions, health and child care, taxation and transport, equitable divorce, and welfare benefits, would assist both women and men. 

Sexual harassment is unacceptable 

Sexual harassment at work is also prohibited under the Sex Discrimination Act. 

Harassment is unsolicited, unwelcome behaviour that offends, humiliates, or intimidates someone. ‘I was just joking around’ no longer has legs – the law and its practice make it clear that what’s most important is what the person on the receiving end feels about what is said or done, and what a ‘reasonable person’ would consider offensive, humiliating, intimidating or threatening.  

The Australian government’s response to the Sex Discrimination Commissioner’s report, Respect@Work, states that it’s unacceptable for one in four men and more than one in three women to have experienced sexual harassment at work in the recent past. The guiding principle expressed both in the report and in the government’s response is that everyone must feel safe at work and all workplaces must be free from sexual harassment. 

As a result, changes to employment laws mean that employers now have a positive duty to prevent sex discrimination and sexual harassment at their places of work, and the definition of ‘serious misconduct’ now includes sexual harassment. The Fair Work Act 2009 has been amended to clarify that sexual harassment can amount to a valid reason for dismissal. 

And Safe Work Australia has published national guidelines on preventing workplace sexual harassment under WHS laws. 

The way forward for business 

Employers have a legal responsibility not to discriminate against employees and to take all reasonable steps to prevent sex discrimination and sexual harassment.  

The Australian Human Rights Commission advises that ‘reasonable steps’ will vary according to the size of the organisation. It may include establishing policies and procedures to create a discrimination-free environment. It could also include procedures to deal with allegations of discrimination and harassment made by employees or customers.  

Positive, visionary leadership can boost morale, reduce staff turnover and improve productivity. It’s in every employer’s business interests to make sure the workplace and everyone in it are free from discrimination, harassment, and other unlawful or unacceptable conduct.