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Sex discrimination and harassment in employment
Half of Australia’s population comprise women and girls. In the Australian workplace, around 46% of workers are female but on average, they take home around $283 less than their male counterparts every week. This phenomenon has been referred to as the gender pay gap. Paying female employees a lower wage for work that is substantially similar to that performed by male employees is a form of discrimination based on sex.
The Australian Human Rights Commission estimates that 25% of women experienced sexual discrimination at work and there is 50% likelihood that a colleague at work will engage in sexually discriminatory behaviour and this would usually consist in making off-colour comments or jokes about the female’s appearance or private life.
Although traditionally, women suffer sex discrimination, they are not the only persons protected from sex discrimination in the workplace: men, gays, lesbians, and transgender men and transgender women are also protected.
What is direct discrimination based on sex?
According to Section 5A of the Sex Discrimination Act 1984, there is discrimination based on sex when an employer or co-worker (also called a discriminator) treats unfavourably a prospective employee or co-worker (called the aggrieved person) because of the aggrieved person’s sex, or because of a characteristic that generally belongs to persons of the sex of the aggrieved person or because of a characteristic generally imputed to persons of the sex of the aggrieved person.
The unfavourable treatment occurs even when the circumstances of the aggrieved person are the same or not materially different from that of a different sex.
The General Protections provisions under section 351 of the Fair Work Act prohibits employers taking adverse action against a person who is an employee or prospective employee because of their sex, sexual orientation, marital status, family or carer’s responsibilities or pregnancy.
In Sharon Menzies v Richard Waycott & Astrovac (Australia) Pty Ltd (14 March 2001), a company acquired the industrial vacuuming business of a man whom they later hired as an employee. The man notified the company that he would be transitioning as a transsexual prior to sex reassignment surgery. When she came back from surgery, she was dismissed.
According to the company, her project designing a vacuuming system for a large tobacco company was mismanaged. On enquiry, however, the liaison officer of the tobacco company was satisfied with the transsexual employee’s handling of the project. The Court held that if it were true that the reason for the dismissal of the transsexual employee was because of poor performance, then a review should have been conducted and the employee should have been given the opportunity to respond to the criticism of her work.
The Court also appreciated that the company offered to double the salary of the transsexual employee and give her a new car if she would only live and dress as a man. Clearly, the employee was dismissed for her transsexual identity. The court ruled that the company had discriminated against the transsexual employee.
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.
In Farmer v Dorena Pty Limited  NSWADT 81 (17 May 2002) a transgender person approached the managing director of a recruitment company asking if being a transgender reduced her chances of getting a job. The managing director assured her that it would not. He promised to seek a reference from her former employer and contact her with possible jobs she can apply for. The managing director did not pursue the reference.
The transgender job applicant called inquiring about a part-time position advertised by the company but the managing director said that the employer wanted a “vanilla woman” – a married woman with kids who could work flexible hours. The court awarded the transgender woman compensation not only for the insensitivity of the managing director but also because the job recruiter did not put the transgender job applicant as a candidate for jobs for which she was otherwise qualified.
Can I sue the company for the acts of sex discrimination of a co-employee against me?
An aggrieved person can sue the person who engaged in the discriminatory acts. In addition, the aggrieved person can also sue the company. Under section 28B (2) of the Sexual Discrimination Act 1984, the company is obligated under the law to protect its employees from sexual discrimination. When sexually discriminatory acts occur and the company fails to protect the employees, the company can be liable. An aggrieved person can sue the company for the acts of sexual discrimination of a co-worker if it can be shown that the company failed to protect its employees from sexual discrimination.
In Gilroy v Angelov  FCA 1775 (8 December 2000) a small contract cleaning company was ordered to pay $24,000 in 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 sexual 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 sexual discrimination against my co-workers?
Termination in such circumstances is unlawful. You have the right to lodge one of the following claims (as you cannot lodge both):
- The termination of your employment is considered an adverse action by your employer against you, and you have the right to lodge a general protections claim.
- You also have the right to lodge a sex discrimination claim with the Human Rights Commission.
In Poniatowska v Hickinbotham  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 can 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 federal court for sexual discrimination against her employer. The Court found the company liable for discrimination based on sex and ordered it to pay the employee $466,000 in 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 because of my gender?
You can file a general protections claim under the Fair Work Act 2009 if you are covered by the federal law system and are discriminated at work. Alternatively, if you are not covered by the Federal law system you can lodge an unlawful termination claim under the Fair Work Act 2009.
You can also lodge a claim with the Australian Human Rights Commission.
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 pain and suffering, for past and future lost wages and back pay.
How can MKI Legal help?
Our team of employment law experts can help you.