Gender Discrimination
Discriminating based on any gender, including transgender identity, is illegal. The law protects victims of sex discrimination and gives them a right to lodge a claim if they experience either direct or indirect discrimination at work.
Sex Discrimination And Harassment In Employment
Do you feel that you have experienced sex discrimination at work? Do you wish to know what you can do about it? If you want to discuss your options, we offer a no-obligation and confidential discussion of your situation.
Sex discrimination is being treated less favourably at work because of your sex, or because of a characteristic generally associated with (or assumed about) people of your sex. It covers hiring, pay and conditions, promotion and training, how you are managed, and dismissal.
Paying women less than men for the same or comparable work, overlooking women for promotion on assumptions about caring responsibilities, and dress or appearance rules imposed on one sex only are common examples.
Women most often experience it, but everyone is protected, whatever their sex. The same laws also protect people because of their sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy and breastfeeding. See Sexual Orientation Discrimination and Pregnancy & Family Or Carer's Responsibilities.
What Is Direct Discrimination Based On Sex?
According to section 5 of the Sex Discrimination Act 1984 (Cth), there is direct discrimination based on sex when an employer or co-worker (also called a discriminator) treats an employee or prospective employee (called the aggrieved person) less favourably than, in circumstances that are the same or not materially different, it treats or would treat a person of a different sex, because of the aggrieved person's sex, or because of a characteristic that generally belongs to, or is generally imputed to, persons of the aggrieved person's sex (s 5(1)).
The comparison is with how a person of a different sex is, or would be, treated in the same or not materially different circumstances.
The general protections in section 351 of the Fair Work Act 2009 (Cth) prohibit employers taking adverse action against an employee or prospective employee because of their sex, sexual orientation, gender identity, intersex status, marital status, family or carer's responsibilities, pregnancy or breastfeeding, among other attributes. Gender identity and intersex status were added to s 351 from 7 December 2022.
The WA Equal Opportunity Act 1984 (WA) also prohibits discrimination in work on the grounds of sex, marital status, pregnancy, breastfeeding, gender history and sexual orientation.
What Is Indirect Discrimination Based On Sex?
There is indirect discrimination based on sex when an employer imposes or proposes to impose a rule, policy, practice, or procedure that seems to treat every employee similarly but its implementation will likely affect adversely employees of a certain sex or gender.
One example of indirect discrimination is when a company gives a promotion or an increase in pay or benefits to workers who have worked continuously for 5 years. Although ostensibly, the practice or policy does not seem to favour or treat unfavourably any employee, the implementation of this policy will adversely affect female employees who often leave employment to give birth to children or care for them. Thus, the policy may be indirectly discriminatory against female employees.
Can An Employment Recruiter Be Sued For Discriminating Against A Transgender Job Applicant?
Yes. Refusing to even consider the recruitment of a person who is qualified for the job simply because she was not of a particular gender is discrimination.
Employment agencies and recruiters are covered in their own right. It is unlawful for an employment agency to discriminate because of gender identity, sex or sexual orientation in the services it provides, including by refusing to put a qualified candidate forward (s 20 of the Sex Discrimination Act; s 17 of the WA Equal Opportunity Act for sex and the corresponding section for each other ground).
Can I Sue The Company For The Acts Of Sex Discrimination Of A Co-employee Against Me?
Yes. You can complain about the person who discriminated against or harassed you, and about the company. Under s 106 of the Sex Discrimination Act, an employer is liable for unlawful discrimination and harassment by its employees and agents in connection with their work unless it establishes that it took all reasonable steps to prevent it. The WA Equal Opportunity Act has the same rule (s 161).
Employers also now have a positive duty to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and hostile workplaces as far as possible (s 47C). See The Positive Duty To Prevent Sexual Harassment.
In Gilroy v Angelov [2000] FCA 1775 (8 December 2000) a small contract cleaning company was ordered to pay damages to an employee because it failed to take reasonable steps to prevent sex discrimination in the workplace. There was no evidence that the company informed its employees that such conduct falls under sex discrimination and that it will be punished. The discriminatory act occurred when a co-employee greeted the complaining employee every morning with the question, "Are you horny today?".
What Can I Do If I Was Terminated Because I Lodged A Complaint For Sex Discrimination Against My Co-workers?
Termination in such circumstances is unlawful. Punishing someone because they complained is victimisation under the Sex Discrimination Act (s 47A) and the Equal Opportunity Act (s 67), and dismissing an employee because they made a complaint about their employment is adverse action under the general protections. You can bring one of the following (you cannot bring more than one about the same dismissal):
- a general protections claim at the Fair Work Commission, which must be lodged within 21 days of the dismissal;
- a complaint to the Australian Human Rights Commission; or
- a complaint to the WA Equal Opportunity Commission, within 12 months.
In Poniatowska v Hickinbotham [2009] FCA 680 (23 June 2009), two male building consultants sent a female colleague three unsolicited emails and text messages with explicit sexual content. They sent her a picture of a woman giving oral sex to a man that included a caption, "U have 2 b better." They stared at her chest and told her that she had "two good assets". They asked her to enter a sexual relationship with a building consultant with a different company so that they could get a good land purchase deal. When the female building consultant complained to her team leader, the team leader said, "What do you expect with a face like yours?"
When the female building consultant persisted in filing an internal complaint against the two male colleagues, the company investigated her complaint but the company sent the female building consultant warning letters instead.
After receiving three warning letters, her employment was terminated. She lodged a case in the Federal Court against her employer. The Court found the company liable and ordered it to pay her substantial damages plus costs.
The Court ordered the company to pay for the female building consultant's pain and suffering, past lost earning capacity plus interest, future lost earning capacity, and medical expenses.
The Court found that the company favourably treated its male employees by treating them leniently in the face of the sexual harassment complaints filed against them but in so doing, it treated unfavourably the female building consultant as the company did not take seriously the complaints filed by her.
What Legal Action Can I Take If I've Been Discriminated Against Because Of My Gender?
You usually have three routes. In most cases you can use only one of them for the same conduct.
1. General protections (Fair Work Act). For employees of national system employers. The employer must prove that your sex was not a reason for its action (s 361). If you were dismissed, lodge with the Fair Work Commission within 21 days.
2. The Australian Human Rights Commission (Sex Discrimination Act). Covers employees, contractors and job applicants, and indirect discrimination. The Commission may end a complaint lodged more than 24 months after the conduct; if it does not resolve, you have 60 days from the termination notice to go to court, where damages are not capped.
3. The WA Equal Opportunity Commission (Equal Opportunity Act). Lodge within 12 months. Damages at the State Administrative Tribunal are capped at $40,000.
If you work for the WA public sector, a WA council or a business that is not a company, you can bring an unlawful termination claim within 21 days if you were dismissed, and the other two routes are open. Compare them on our page on where to make a discrimination complaint.
What Remedies Can I Expect If I File A Sex Discrimination Complaint?
The court can:
- Order the discriminator to perform acts to redress loss or damage suffered by the complaining party.
- If the employee was dismissed, the court can order that the dismissed employee be reinstated.
- Order the discriminator to pay the aggrieved party damages to compensate for loss and damage suffered by the complaining party.
- Find the employer or company liable for failing to protect the complaining party from sex discrimination.
- Order the payment of damages for hurt and humiliation, for past and future lost wages and back pay.
How Can MKI Legal Help?
If you think you have been treated unfairly because of your sex or gender, our team can explain your options, and which deadline comes first, in a free and confidential initial discussion.