Australian employers can do a great deal to prevent gender discrimination in the workplace, and they have powerful incentives to do so. Not only is it prohibited under the Sex Discrimination Act 1984 and the Australian Human Rights Commission Act 1986, but gender discrimination can poison a workplace, render it unproductive and spark excessive employee turnover. Employees will also need to be aware of the extent to which they are protected and what recourse they have.

But prevention and response must begin with an understanding of what the term “gender discrimination” means. For most people, it includes more than they think.

What Gender Discrimination Is

The laws protect men and women from unfair treatment in the workplace based on:

sex
marital status
family responsibilities
pregnancy or the possibility of pregnancy
breastfeeding
sexual orientation
gender identity
intersex status

The law protects workers from directly discriminatory treatment based on these factors and from rules or requirements which, although facially neutral, affect one group of employees more than another. The latter might be the case, for example, if an employer, for reasons unrelated to job performance, required employees to be more than six feet tall. Although neutral on its face, the requirement is likely to exclude a greater portion of women from employment than men.

Sexual harassment is also a form of gender discrimination. It includes unwelcome sexual behavior, including:

physical touching
staring
suggestive comments or jokes
unwanted requests to go out on dates
requests for sex
electronic transmission of pornography, rude jokes or sexually explicit texts
intrusive questions about private life or physical attributes
the display of pictures, including screen savers of a sexual nature.

In the workplace, the concept of sexual harassment includes the conduct of co-workers as well as between supervisors and employees. It may also cover conduct off-site and after hours such as the case with electronic communications or bad behaviour at the office holiday party.

What Employers Can do to Prevent Gender Discrimination

First of all, it is important for employers to stay abreast of what the laws prohibit. Social understanding of gender discrimination has evolved considerably over the last thirty years, and it is important to remain aware of changing interpretations. Beyond that, however, employers can take four important steps to protect both employees from discrimination and the business from legal liability.

Have a written nondiscrimination policy. Some employers have a general policy that includes all forms of illegal discrimination. Others separate out the issue of gender discrimination as deserving of particular treatment. Work closely with your solicitor to ensure that the written policy is accurate and complete.
Train supervisors in the implementation of the policy and share the policy with all employees on a regular basis. Mailing it around to everyone may not be sufficient. It may be more effective to conduct group training sessions with the opportunity for questions and answers.
Make sure that employees have a confidential way to seek resolution of a gender discrimination issue. Many advisors suggest delegating this to an outside third party to ensure confidentiality and protect employees from retaliation.
Take appropriate action to remedy the discrimination. Remember that an employer who knows or has reason to know about harassment and fails to act may be legally liable for the actions of the harasser.

What Employees Can Do About Gender Discrimination

As with employers, the most important step is to understand what gender discrimination is, what rights you have in the workplace, and what your avenues of redress are. If you believe that you have been a victim of gender discrimination, it is probably reasonable to assume that you are not alone. This is simply not a part of the job that you or anyone else has to put up with.

If possible, you may wish to complain of the discriminatory action directly to the actor, especially if you suspect it may be the result of a misunderstanding. If not, the next best step may be to follow the employer-established method of resolving disputes. You should also be aware that you can lodge a complaint with the Fair Work Ombudsman. Other administrative and judicial remedies may also be available but, at this point, it would be wise to be working with a solicitor.

Help!

At Owen Hodge Lawyers, we support that the right of employees to a work environment free of gender discrimination and harassment, and we are eager to work with employers who want to take steps to prevent or end illegal practices that produce a toxic workplace . Call us for a free consultation at 1 800 770 780 or contact us via ohl@owenhodge.com.au, so that we can help you address the issues that you face.