Sex Discrimination & Equality Before Law

Over the years, we have received a number of inquiries from females in the workplace who call and explain that their employer has discriminated against them on the basis of their sex by either making crude, inappropriate, and offensive statements about females and/or their employer not providing them the flexibility to attend to their family responsibilities. We have also acted for clients where employers regrettably tell female employees that there are certain jobs or duties they cannot perform because of their sex, or that because they are female, they should dress or act in a certain way.

The Human Rights associated with the gender and sex of employees in the workplace often interact with characteristics that appertain to or are imputed to people of a particular sex. All too often in the workplace, there is discriminatory conduct, often to the detriment of females and to characteristics associated or appertaining to females including but not limited to their actual or potential pregnancy, maternity leave, family and career responsibilities, and their restricted hours of work to cater for their family and career responsibilities.

Under the Sex Discrimination Act of 1984, it is unlawful to discriminate against a person on the basis of their sex or a characteristic that appertains or is imputed to persons of that sex.

Section 14 of the Sex Discrimination Act of 1984, gives protection to male or female employees by making it unlawful for any employer to discriminate against them, including in the terms and conditions of employment, denying them opportunities for promotion, subjecting them to any detriment including for example, being counseled for their absences and indeed prohibits the termination for any employment.

As defined in section 5 (Sex Discrimination) of the Sex Discrimination Act 1984, an employer is prohibited from engaging in both direct and indirect forms of discrimination.

Furthermore, employees who are discriminated against based on their sex have further legal protection under the Fair Work Act (2009), including but not limited to;

(a) rights under the national employment standards, including parental leave and related entitlements such as an entitlement to unpaid parental leave;

(b) section 351 which prohibits discrimination and adverse action on the basis of the employee’s sex, family or career responsibilities, or pregnancy;

(c) section 352, which protects absences from work including absences that may be related to the pregnancy;

(d) section 340, which protects adverse action against an employee who exercises a workplace right such as making a request for pregnancy and birth-related leave and/or flexible working arrangements.