Sex Discrimination Act and Sexual Harassment in Workplace

BSL202Workplace Law
Assignment
In the present assignment, it needs to be seen if Mary has a remedy available to her under any
Commonwealth legislation, other than the Fair Work Act against the conduct of the male staff,
his immediate supervisor Andrew or the company. This issue arises due to the fact that the male
coworkers of Mary had given her a birthday card, which had a nude woman serving drinks to
men. Mary was deeply offended, as she had faced such tasteless remarks about the large breasts
in the past also. As a result, she brings it to the notice of her immediate supervisor Andrew and
shows him the card. However, instead of taking any action, Andrew claims that her coworkers
didn't mean to offend. And he also stated that if she cannot get along with our coworkers, there is
not much future for Mary at the company. The next day, she learns that the company has refused
her application for promotion.
Therefore, it appears that in the present case, the provisions of Sex Discrimination Act, 1984
(Cth) may apply. According to this legislation, it has been credited by the law to (i) discriminate
against a person due to sex, pregnancy or marital status; (ii) to sexually harass the person; or (iii)
to dismiss the person from the job underground of his or her family responsibilities. In such a
case, the law provides that the person can make a complaint to the Human Rights and Equal
Opportunity Commission in case the person has to face such treatment that may be considered as
unlawful under this legislation.1 When such a complaint has been made, it is referred to the
1 Chappell, Louise, ‘Winding Back Australian Women’s Rights: Conventions, Contradictions and Conflicts’ (2002)
37(3) Australian Journal of Political Science 475–88.

president of the Commission for inquiry and also efforts are made for conciliation. Another
function of the Commission is to conduct the research and education regarding sex
discrimination and similarly the commission also examines various applicable laws in order to
ensure that these legislations are consistent with the provisions of the Act.2
Sex discrimination: the meaning of sex discrimination can be described as being treated unfairly
on account of the sex or marital status or due to the fact that the person is pregnant or potentially
pregnant. In the same way, sex discrimination also includes the instances where a person has
been dismissed from employment on account of the family responsibilities of such person.
Therefore, an example can be given of the situation where the manager of the company sees that
all the male employees of the company are going to receive a hike in wages, but the same will
not be available to all the female employees. This will be a clear case of 'direct' sex
discrimination. However discrimination may also take place where a requirement is present, (for
example a rule, procedure, policy or practice) that is similar for every person but when the
requirement has an unfair impact on particular groups. An example of such situation can be
given where the company announces that an increase in wage will be given to all the employees
who have continuously work for the company for 20 years. However, it is likely that in such a
case, a large number of woman employees as compared to men, are going to miss out on the
chance of having a rise in their wages.3 A lot of women have to interrupt their jobs for having
children and therefore they would not have worked continuously for one company for the last 20
years. This type of unfair treatment can also be described as 'indirect' sex discrimination.
2 Maddox, Marion, God Under Howard: The Rise of the Religious Right in Australian Politics, Allen & Unwin,
Sydney, 2005.
3 Pateman, Carole, The Disorder of Woman: Democracy, Feminism and Political Theory, Polity Press, Cambridge,
UK, 1989

Sexual harassment: it can be described as a type of sex. Therefore, in this context, sexual
harassment includes any unwelcome or unwanted sexual behavior due to which the other person
feels humiliated or offended and when such creation can be considered as reasonable under the
circumstances. It needs to be noted that it is not related with mutual friendship or attraction.
Therefore, the next question that may arise in this regard is where unlawful sex discrimination
takes place.4 According to this legislation, it is unlawful to discriminate against any person in
several public areas of public life. Some of these areas include employment, education,
superannuation and insurance, awards and enterprise bargaining, goods and services, buying or
selling land, accommodation and housing and Commonwealth programs and legislation.5
It also needs to be noted that the employer can be held legally responsible for any sexual
harassment or sex discrimination that has been replaced by the employees.
Harassment: the provisions related harassment are present in a wide range of legislation,
including the provisions mentioned below. According to section 28A, Sex Discrimination Act,
sexual harassment has been defined as the situation where a person has made unwelcome
requests for sexual favors, unwelcome sexual advance or if the person is involved in any of the
unwelcome conduct that is of sexual nature regarding a person.6 This takes place under the
circumstances it is possible that the person who is being so harassed, may become, humiliated,
offended or intimidated.7 In this regard, it needs to be noted that it is possible that such
harassment may take place in a subtle at the implicit manner instead of being explicit. Another
relevant provision is section 18 of the Racial Discrimination Act, 1975. This provision prohibits
4 Rivers, Julian, ‘Law, Religion and Gender Equality’ (2007) 9 Ecclesiastical Law Journal 33
5 Wasserstrom, Richard A., ‘On Racism and Sexism’ in Richard A. Wasserstrom (ed.), Today’s Moral Problems,
Third edition, Macmillan, New York, 1985
6 Thornton, Margaret, ‘Auditing the Sex Discrimination Act’ in Marius Smith (ed.), Human Rights 2004: The Year in
Review, Castan Centre for Human Rights Law, Monash University, Melbourne, 2005.
7 Sawer, Marian, Sisters in Suits: Women and Public Policy in Australia, Allen & Unwin, Sydney, 1990.