Sex-based discrimination and harassment

Sex-based discrimination occurs when someone is treated less favourably, or not given the same opportunities as a person of a different sex, because of their sex. This is referred to as direct discrimination. It also occurs when a rule, policy or practice applies to everyone but disadvantages a person based on his or her sex. This is indirect discrimination.[1]

Workplace examples include:

• not hiring a woman based on assumptions that she will not fit into a ‘traditionally’ male workplace
• not paying a woman and man the same salary for the same work
• not providing the same opportunities to employees for training, mentoring or promotion
• assigning work tasks based on a person’s sex.[2]

Harassment is behaviour that treats a person less favourably because of certain personal characteristics such as sex, race, disability or age.[3] Sex-based harassment is characterised by verbal abuse or insults as well as behaviours that aim to marginalise on the basis of sex or gender.[4] Manifestations of sex-based harassment in the workplace can overlap with sexual harassment.[5] Sexual harassment is unwelcome sexual conduct that a reasonable person would expect to be offensive, humiliating, or intimidating to the person being harassed.[6]

Anyone can experience sex-based discrimination and harassment, regardless of their sex, gender identity, sexual orientation or intersex status.[7] Recent research on the prevalence of sexual harassment in Australia finds that 71% of Australians have experienced sexual harassment at some point in their lives, and one third of Australians report experiencing sexual harassment in the workplace.[8]

Rates of sexual harassment are higher among certain demographic groups. This includes:

• women
• people aged 18 to 29
• people who identify as a non-binary gender or a gender other than female or male
• people who identify as gay, lesbian, bisexual, pansexual, queer, asexual, aromantic, undecided, not sure, questioning or other
• people who identify as Aboriginal or Torres Strait Islander
• people with disability.[9]

Sex-based discrimination can occur at any stage of the employment cycle as well as when providing goods and services to clients. Research finds that gender discrimination, such as that linked to workplace culture, hiring, promotions, and access to training, is the most significant driver of the gender pay gap.[10]

In its report on the findings of the National Inquiry into Sexual Harassment in Australian Workplaces, the Australian Human Rights Commission details the below impacts of sexual harassment in the workplace.

• Employees may experience negative impacts on:
  • health
  • well-being
  • employment including career progression
  • financial circumstances.
• Employers may experience:
  • productivity loss
  • staff turnover
  • negative effects on workplace culture and reputation
  • financial costs related to responding to complaints, litigation and workers’ compensation.
• The Australian economy has experienced a $3.8 billion cost due to workplace sexual harassment in 2018.