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Equal opportunity – discrimination and sexual harassment in the workplace

By CCIWA Editor 

Equal opportunity is aimed at preventing and eliminating discrimination throughout the entire employment cycle.

Discrimination occurs where a person distinguishes between individuals or groups so as to disadvantage some. It can be both direct and indirect.

Direct discrimination is unfair treatment based on a person’s membership of a certain group or stereotyped beliefs about that group.

Example: Despite being the most qualified applicant, an individual was not offered a customer service position because he was in a wheelchair. The hiring manager believed the applicant would not be able to get around as quickly as other employees.

Indirect discrimination occurs where there is a requirement which appears to treat everyone equally, but which has an unequal or unfavourable effect on a particular group, in circumstances where the requirement is not a reasonable requirement.

Example: A company which has decided to make all its part time positions redundant, may well be indirectly discriminating against women as part time positions have traditionally been held predominantly by women. The situation may be different if the employer can show good operational reasons why it decided to target the part time positions.

State and federal legislation includes discrimination and harassment on the following grounds:

  • sex, sexual harassment
  • religion
  • impairment
  • family responsibility, family status, marital status
  • race, ethnic origin, racial hatred
  • pregnancy, potential pregnancy
  • political opinion
  • social origin
  • age
  • mental, intellectual or psychiatric disability
  • criminal record, spent convictions
  • medical record
  • sexual preference
  • trade union activity
  • physical disability

On June 28, 2013, the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 (Cth) (Act) received Royal Assent, amending the Sex Discrimination Act 1984 (Cth).  As a result, effective 1 August 2013 the Australian Human Rights Commission can now also accept claims of discrimination on the following grounds:

  • Sexual orientation
  • Gender identity
  • Intersex status.

Claims relating to these grounds may be made where the alleged discrimination occurred on or after August 1, 2013.

Same-sex couples are protected from discrimination under the new definition of ‘marital or relationship status’ (which was previously ‘marital status’).

While most states and territories already have existing legislation to protect against discrimination based on sexual orientation and gender identity, intersex status is not protected under any other law.

While employees are personally liable for any acts of discrimination towards co-workers, clients and suppliers, employers are vicariously liable if they have not taken reasonable steps to prevent the discrimination.

It is an offence to victimise a person who makes a complaint or who assists in a discrimination enquiry.

What does vicarious liability mean?

Under both federal and State anti-discrimination law an employer may be legally responsible for discrimination and harassment that occurs in the workplace or in connection with a person’s employment unless the employer can show that it took reasonable steps to prevent the discrimination or harassment from occurring.

This legal responsibility is called vicarious liability.

The vicarious liability provisions of the legislation apply where the alleged discrimination and harassment occurs in connection with the person’s employment. This includes the usual work environment, work functions, Christmas parties and business or field trips. If the discrimination occurs outside of the business, such as on social networking websites, the employer may still be found to be vicariously liable if the employee can establish that the discrimination was in connection with their employment.

How does an employer reduce liability?

Some of the reasonable steps an employer can take to reduce liability include:

  • regular circulation of a written policy prohibiting workplace discrimination and harassment;
  • ensuring all staff are properly trained in workplace discrimination and harassment and its prevention;
  • establishing effective complaint handling procedures;
  • treating all complaints seriously and investigating them promptly;
  • ensuring appropriate action is taken to address and resolve complaints;
  • monitoring the workplace environment and culture.

Sexual harassment

Employers may also be vicariously liable for any sexual harassment their employees commit or are subjected to.

If a complaint lodged with the WA Equal Opportunity Commission is successful, the employer can be ordered to pay up to $40,000 under State legislation and an unlimited amount under federal legislation.

Claims can be made under State or federal legislation.

What constitutes sexual harassment?

The legal definition of sexual harassment varies between State and federal jurisdictions.

The two common elements are that the behaviour must be of a sexual nature and unwelcome to the recipient.

Under the federal legislation, which is the Australian Human Rights Commission Act 1986, the third element requires that a reasonable person would regard the behaviour as offensive, humiliating or intimidating.

Under the WA state legislation, which is the Equal Opportunity Act 1984, the third element requires that the person at whom the behaviour is directed has reasonable grounds for believing that a rejection of the behaviour would disadvantage their employment prospects or would in any other way disadvantage them in their employment.

Behaviour that may constitute sexual harassment is outlined below:

  • physical contact such as patting, rubbing and massaging
  • suggestive comments about a person’s appearance
  • sending sexually oriented email
  • sexually graphic posters, calendars and messages left on desks and computer screens
  • inferences about a person’s sexual morality
  • gestures or movements of a sexual nature
  • repeated requests for dates or drinks.

Humour or friendship based on mutual consent is not sexual harassment. The conduct must be unwelcome.

It is not the intention behind the behaviour that matters but the feelings of the person at whom the behaviour is directed.

The conduct does not have to be repeated or continuous to be classed as harassment. A single act can amount to sexual harassment.

How does an employer reduce liability?

Employers can reduce or eliminate their liability for sexual harassment as follows:

  • Develop a company Sexual Harassment Policy and communicate it to all employees (including new employees when they commence). The employer’s policy should identify what constitutes sexual harassment and emphasise that it will not be tolerated and may lead to termination.
  • Develop an effective complaint procedure and communicate it to all employees.
  • Follow set procedures in the event of a complaint.

Sexual harassment policy

A company policy on sexual harassment can be a short statement along the following lines:

“Sexual harassment is unwelcome behaviour of a sexual nature which you regard as offensive, or which you feel will disadvantage you if you object to it.

Such behaviour will not be tolerated and may lead to termination for offending employees.

Any person who feels they are being sexually harassed should report the situation to their direct manager or the HR manager.

All complaints will be investigated and, if substantiated, the offending employee will be subject to the disciplinary proceedings including termination if appropriate.”

Like to know more?

CCI Training Services conducts a range of courses on sexual harassment, equal opportunity and affirmative action. Participants will learn how to reduce the likelihood of legal action by implementing an effective company policy and staff awareness program. Contact CCI Training Services on (08) 9365 7500 for details, or visit www.cciwa.com

Equal opportunity is aimed at preventing and eliminating discrimination throughout the entire employment cycle.

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