advice online - Discrimination and Sexual Harassment

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Advice Online > Entitlements - Discrimination & Sexual Harassment

Discrimination and Sexual Harassment

What is discrimination?
What is the difference between direct and indirect discrimination?
What are the main bases for discrimination?
What can I do about discrimination?
What is sex discrimination?
What are the main types of sexual harassment
What are my options in terms of legal redress?
What is the role of my employer in acting to prevent harassment?
What can I do about sexual harassment?

What is discrimination?

Discrimination in employment means being treated less fairly than someone else for reasons that are unrelated to your ability to do a job. Discrimination can take various forms, but none of them are desirable. Many forms of discrimination are specifically prohibited by legislation and it is only these which are illegal.

From the perspective of employees, discrimination is a barrier to achievement of full potential and job satisfaction. For employers, failure to use employees' full potential means that the workplace will be less than fully productive and competitive. For these reasons, it is in the interest of everyone that Australian workplaces are free of discrimination, with all decisions based on merit.

What is the difference between direct and indirect discrimination?

Discrimination is said to be direct when an employee is disadvantaged by a decision based on an assumption arising from the employee being in a certain category. An example would be an employer who declines to employ Eskimos because it is assumed that all Eskimos are lazy.

Indirect discrimination arises when employees are disadvantaged or excluded by arrangements (eg policies, procedures) that at face value appear neutral. For example, a factory that has all its procedures written in English, yet not all of its employees speak English.

What are the main bases for discrimination?

Discrimination in employment can manifest itself in range of different outcomes:

not being selected for a job by a new employer;
not being promoted by your existing employer; or
being required to follow a work rule or policy that disadvantages certain groups.

Discrimination is only illegal if it is specifically prohibited by legislation. Forms of discrimination that have been prohibited by different states and federal legislation include discrimination on the basis of:

race
colour
sex
age
trade union activity
religion
criminal record

political opinion
marital status
impairment (including HIV status)
disability (including physical and intellectual)
medical record

national extraction
nationality
social origin
sexual orientation
gender identity inc. transexuality

It is important to note that state and federal legislation are in no way uniform in the way they refer to each of these areas, and members should seek advice directly from APESMA if they have a problem in relation to discrimination.

What can I do about discrimination?

Members should contact APESMA. Sometimes matters of discrimination can be resolved by discussion involving APESMA. In other cases it may be appropriate to have the matter heard by the Australian Industrial Relations Commission. Alternatively, a complaint may be made to the federal Human Rights and Equal Opportunity Commission, or an appropriate state anti-discrimination tribunal.

What is sex discrimination?

Sex discrimination takes many forms. The most commonly reported is sexual harassment. While sexual harassment can affect men and women, it principally affects women.

Sexual harassment is any unwanted or uninvited sexual behaviour which is offensive, embarrassing, intimidating or humiliating. It has nothing to do with mutual attraction or friendship.

Sexual harassment is a very serious issue. It can cause harm and distress and can influence an individual's work performance. It can also significantly affect the workplace atmosphere and productivity. It undermines morale, efficiency and job satisfaction.

What are the main types of sexual harassment

There are two principal types of sexual harassment.

Harassment accompanied by employment threat or benefit - for example, a supervisor makes unwelcome sexual advances with the clear implication that if accepted they will lead to job advancement, or if rejected will lead to job demotion or dismissal.
Creation of a Sexually Hostile Environment - relentless unwelcome sexual conduct in the workplace which interferes with work and creates a hostile, abusive, offensive or intimidating environment, particularly where women are in the minority and the harassment is directed at women generally rather than at the individual.

What are my options in terms of legal redress?

Under the Sex Discrimination Act (a federal law), it is illegal to sexually harass a person in employment, education or in the provision of goods, facilities and services. Under the Act, if the complainant felt offended, humiliated or intimidated by the conduct and a reasonable person, having regard to all the circumstances, would have anticipated that the complainant would be offended, humiliated or intimidated by the conduct, then the complaint of sexual harassment will be upheld.

Often the harasser will claim that he or she did not know the conduct was unwelcome. This is not relevant under the Act. It is enough that a reasonable person would know it was going to cause offence, humiliation or intimidation.

What is the role of my employer in acting to prevent harassment?

The employer of the person or persons who commit the illegal conduct will also be liable under the Act, unless the employer can show all reasonable steps were taken to prevent the conduct. Preventative steps would include:

formulating a policy statement on sexual harassment, including the establishment of an effective complaints mechanism;
formulating guidelines to prevent sexual harassment;
conducting staff awareness programs on the issue of sexual harassment;
taking active steps on learning of the conduct to immediately prevent it occurring again;
taking active steps to discipline any employee who has harassed another employee.

What can I do about sexual harassment?

In addition to the Federal legislation, most States have legislation that makes sexual harassment illegal. The method of making a formal complaint about sexual harassment is the same as for any other sort of sex discrimination. As always, it is advisable to discuss the matter first with an APESMA Industrial Officer. The Industrial Officer can assist you to make a formal complaint, or discuss informal ways to resolve the matter.