Sex Discrimination

21 October 2003 by
Sex Discrimination

The law on sex discrimination is laid down in the Sex Discrimination Act 1976 and in amendments made to it since then. It also prohibits discrimination against transsexuals.

What types of workers does the law cover?

It is unlawful to discriminate against:

1. Job applicants in all the arrangements for determining who gets a job; in the terms that are offered; or by refusing or deliberately omitting to offer employment.

2. Employees in the terms of employment, including opportunities for promotion, training, benefits etc; or by dismissing them or placing them at a disadvantage causing damage or harm.

3. The self-employed. Provided the self-employed person carries out the work personally, the scope of the protection is the same as described above.

4. Contract workers (agency workers) in the terms on which they are allowed to do their work; by not allowing them to continue with the work; in the way access is granted to benefits, facilities or services, or deliberately refusing or omitting access; or by "subjecting them to detriment".

What are the different types of sex discrimination?

Direct discrimination
Direct discrimination means treating a person less favourably than another person purely on the grounds of sex, marital status or "gender reassignment" (transsexualism). For example, not offering someone a job purely because she is a woman would be direct discrimination. It can never be justified, even if well intentioned.

Indirect discrimination
Indirect discrimination means imposing a requirement or condition that applies equally to all people, but the proportion of one sex that can comply with it is considerably smaller than the proportion of the other sex. To suffer indirect discrimination, an individual would have to suffer a detriment because she or he cannot comply with the requirement or condition, and the requirement or condition cannot be shown to be justifiable irrespective of sex.

Gender-specific discrimination
Pregnant women have no comparator (ie, they cannot be compared with a pregnant man) so less favourable treatment on grounds of pregnancy is automatically discrimination. Equally no comparator is required where the conduct is gender-specific sexual harassment. For example, unwelcome remarks about a woman's breasts would be gender-specific as the same remark could not possibly be made to a man.

Gender reassignment (transsexualism) and absence from work
It is unlawful for a person absent because they are undergoing gender reassignment to be treated less favourably than if the absence was due to sickness or injury.

Victimisation
If a person has bought proceedings under the Sex Discrimination Act, given evidence in such proceedings, or alleged that something has been done in contravention of the act, it will be discriminatory to treat them less favourably for this reason.

Harassment
Harassment is a particular form of sex discrimination but it does not have a legal definition. A European code defines it as "conduct which is unwanted, unreasonable, and offensive which creates an intimidating, hostile or humiliating working environment" and which fits squarely with the legal test for direct discrimination.

Can sex discrimination ever be legal?

It is lawful to discriminate in circumstances where being a specific sex is a genuine occupational qualification for the job. For example: where the essential nature of the job requires either a man or woman for reasons of physiology or authenticity; if one particular sex is required for reasons of decency or privacy; if the employee must live in accommodation where the sleeping and sanitary facilities are for one sex only; in single-sex establishments such as hospitals or old peoples homes; where the job is one of two held by a married couple.

What else should I be wary of?

The Sex Discrimination Act does not permit positive discrimination, although, if it can be proved that persons of that particular sex were drastically under-represented in the job concerned over the previous 12 months, the employer can offer access to training for particular work.

You may be liable for acts of discrimination committed by third parties, eg customers or visitors, if the discrimination was reasonably foreseeable and/or you did nothing to prevent it.

What about sexism from colleagues?

It is unlawful to instruct or induce another person to discriminate, or to attempt to instruct or induce another person to discriminate.

Employers are responsible for acts of discrimination committed by employees during the course of employment, whether they were committed with or without the employer's knowledge or approval. This includes discrimination at events held outside of work but where the nature of the event can be directly linked to work, for example a company Christmas party.

An employer can defend a claim by arguing that reasonable steps were taken to prevent discrimination occurring or re-occurring. Having a policy is not enough: it must be demonstrated that the policy has been properly communicated, through training and written guidance etc.

What happens when a complaint is made?

A claim may be brought to a tribunal, regardless of length of service or hours worked, within a three-month period beginning when the act complained of was committed.

If a tribunal upholds a complaint it can make a ruling on the employee's rights and whether these have been infringed. It can award compensation and/or make a recommendation that the employer takes steps to prevent or reduce the adverse effect of discrimination on the complainant.

On 12 October 2001, new regulations were put in place. The applicant has to prove that discrimination has occured by producing facts. The tribunal will dismiss any case that does not give facts. If there is a case to answer, the employer has to prove that discrimination did not occur, which places a greater burden on the employer than the previous regulations.

In addition, the definition of indirect discrimination has slightly been amended, but this will not make a significant difference. For more information, see the Equal Opportunities Commission's website.

What's the role of the Equal Opportunities Commission?

The Equal Opportunities Commission is entitled to formally investigate an organisation if it has sufficient evidence to believe that discrimination may be occurring. In such circumstances the commission can issue a non-discrimination notice and require employers to provide further details to prove that the steps required to prevent discrimination have been taken. They are also allowed to assist individual employees with claims against employers.

by Jonathan Exten-Wright
Jonathan Exten-Wright is a partner in the Employment Department of lawyers DLA.

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