Summary
Many Australians have experienced sex-based discrimination and harassment, including in the workplace. This has negative consequences for employees, employers, and the Australian economy. Employers have an important role in preventing sex-based discrimination and harassment.
You can access:
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tools, guidance, resources and relevant legislation from the Australian Human Rights Commission
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information about effective dispute resolution from the Fair Work Ombudsman.
What is 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]
Who experiences sex-based discrimination and harassment?
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]
How does it impact the workplace?
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.
What can workplaces do?
Meet your legal obligations
Employers are responsible for ensuring a discrimination-free and harassment-free workplace. They have a legal obligation to take all ‘reasonable steps’ to prevent discrimination and harassment.[11] Employers can be held liable for the discriminatory actions or harassment by an employee unless the employer can establish that they took all reasonable steps to prevent it.[12]
In Australia, there is federal, state and territory legislation that protects people from discrimination and harassment. For instance, the Sex Discrimination Act 1984 (SDA) makes it unlawful to discriminate against a person on the basis of gender identity, intersex status, sexual orientation, marital or relationship status, family responsibilities, pregnancy or potential pregnancy or breastfeeding. The SDA prohibits sexual harassment and discrimination in many areas of public life, including in work-related activity.[13] In addition, the Fair Work Act 2009 states that an employer cannot take adverse action against an employee or prospective employee on the basis of personal characteristics including sex, sexual orientation, marital status, family or carer responsibilities, and pregnancy.
You can access more information about your obligations from the Australian Human Rights Commission and the Fair Work Ombudsman.
Develop a formal policy or strategy
Employers may choose to develop and implement policies, strategies or procedures to prevent discrimination and harassment and manage allegations.
Leading practice organisations in the private sector clearly articulate their commitment to preventing sex-based discrimination and harassment through:
- Policies that outline what constitutes sex-based discrimination and harassment and how allegations will be handled within the organisation;
- A zero-tolerance approach to sex-based discrimination and harassment;
- Key performance indicators that keep managers accountable to ensuring a discrimination-free and harassment-free workplace.[14]
The Agency’s dataset shows that the majority of reporting organisations have a formal policy or strategy on sex-based harassment and discrimination prevention, and these policies or strategies include a grievance process. An effective grievance process takes formal complaints raised by employees seriously and aims to resolve the dispute internally.
You can access information related to:
- Creating a workplace discrimination and harassment policy from the Australian Human Rights Commission
- Effective dispute resolution from the Fair Work Ombudsman
Provide training and education
Leading practice organisations recognise that all employees can contribute to creating an inclusive workplace culture that is free from discrimination and harassment. To this end, they mandate training for managers and staff on issues of sexual harassment on a regular basis.[15] Since reporting to the Agency began, data shows a steady increase in the proportion of reporting organisations which provide training for all managers on sex-based harassment and discrimination prevention. In the 2019-20 reporting period, 88.5% of reporting organisations have provided such training.
The Australian Human Rights Commission has an educational hub to assist employers in preventing discrimination in the workplace.
Resources
[1] Australian Human Rights Commission (2014), Sexual orientation, gender identity and intersex status discrimination, viewed 9 February 2021, available: https://humanrights.gov.au/our-work/employers/sexual-orientation-gender-identity-and-intersex-status-discrimination.
[2] Australian Human Rights Commission (2014), Sex Discrimination, viewed 9 February 2021, available: https://humanrights.gov.au/our-work/employers/sex-discrimination.
[3] Australian Human Rights Commission (2014), Workplace discrimination, harassment and bullying, viewed 11 February 2021, available: https://humanrights.gov.au/our-work/employers/workplace-discrimination-harassment-and-bullying.
[4] McDonald, P & Flood, M (2012), Encourage. Support. Act! Bystander approaches to sexual harassment in the workplace, Australian Human Rights Commission, viewed 11 February 2021, available: https://humanrights.gov.au/sites/default/files/content/sexualharassment/bystander/bystander_june2012.pdf.
[5] McDonald, P & Flood, M (2012), Encourage. Support. Act! Bystander approaches to sexual harassment in the workplace, Australian Human Rights Commission, viewed 11 February 2021, available: https://humanrights.gov.au/sites/default/files/content/sexualharassment/bystander/bystander_june2012.pdf.
[6] Australian Human Rights Commission (2014), Workplace discrimination, harassment and bullying, viewed 11 February 2021, available: https://humanrights.gov.au/our-work/employers/workplace-discrimination-harassment-and-bullying.
[7] See, for instance, Australian Human Rights Commission (2018), Face the facts: Gender equality, viewed 11 February 2021, available: https://humanrights.gov.au/our-work/education/face-facts-gender-equality-2018; Australian Human Rights Commission (2014), Face the facts: Lesbian, Gay, Bisexual, Trans and Intersex people, viewed 11 February 2021, available: https://humanrights.gov.au/our-work/education/face-facts-lesbian-gay-bisexual-trans-and-intersex-people.
[8] Australian Human Rights Commission (2018), Everyone’s business: Fourth national survey on sexual harassment in Australian workplaces, viewed 9 February 2021, available: https://humanrights.gov.au/our-work/sex-discrimination/publications/everyones-business-fourth-national-survey-sexual.
[9] Australian Human Rights Commission (2018), Everyone’s business: Fourth national survey on sexual harassment in Australian workplaces, viewed 9 February 2021, available: https://humanrights.gov.au/our-work/sex-discrimination/publications/everyones-business-fourth-national-survey-sexual.
[10] KPMG, Diversity Council Australia, WGEA (2019), She’s Price(d)less: The economics of the gender pay gap, viewed 9 February 2021, available: https://www.wgea.gov.au/sites/default/files/documents/She%27s-Price%28d%29less-2019-Detailed-report_0.pdf.
[11] Australian Human Rights Commission (2014), Sexual orientation, gender identity and intersex status discrimination, viewed 9 February 2021, available: https://humanrights.gov.au/our-work/employers/sexual-orientation-gender-identity-and-intersex-status-discrimination.
[12] McDonald, P & Flood, M (2012), Encourage. Support. Act! Bystander approaches to sexual harassment in the workplace, Australian Human Rights Commission, viewed 11 February 2021, available: https://humanrights.gov.au/sites/default/files/content/sexualharassment/bystander/bystander_june2012.pdf.
[13] Australian Human Rights Commission (2014), Sex Discrimination, viewed 9 February 2021, available: https://humanrights.gov.au/our-work/employers/sex-discrimination.
[14] Fitzsimmons, TW, Yates, MS & Callan, VJ (2020), Employer of Choice for Gender Equality: Leading practices in strategy, policy and implementation, Brisbane: AIBE Centre for Gender Equality in the Workplace, viewed 9 February 2021, available: https://www.wgea.gov.au/sites/default/files/documents/UQ%20full%20report.pdf
[15] Fitzsimmons, TW, Yates, MS & Callan, VJ (2020), Employer of Choice for Gender Equality: Leading practices in strategy, policy and implementation, Brisbane: AIBE Centre for Gender Equality in the Workplace, viewed 9 February 2021, available: https://www.wgea.gov.au/sites/default/files/documents/UQ%20full%20report.pdf.