With employment law in mind, sex discrimination is where an employer discriminates against an employee or prospective employee due to their sex. Laws against sex discrimination started in 1975 and extra actions have been added over the years with the main legislation coming from the Equality Act of 2010, often referred to as ‘The Act’. Within The Act there are four types of sex discrimination:
- Direct discrimination
- Indirect discrimination
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Who can be affected by sex discrimination?
Sex discrimination can happen due to a one off action or because of a rule or policy based on sex within an organisation. Therefore, anyone within employment (applying to all stages of employment – recruitment, promotion and dismissal) is protected from sex discrimination under The Act, this includes:
- People working through an agency
- Contractors, freelancers and the self-employed
- Work experience or apprenticeships
Both men and women are given the same protection under The Act. Sex discrimination against women is just as unlawful as sex discrimination against men. Equally, it is unlawful for a man to discriminate against another man due to his sex, and for a woman to discriminate against another woman because of her sex.
Direct discrimination happens when an employer treats an employee less favourably due to their sex compared to how another employee of the opposite sex would be treated in the same circumstance. To have direct sex discrimination proved, an example must be given when an employee within a similar circumstance but of different sex has been treated more favourably to the claimant.
Examples of direct sex discrimination include:
- A male employee receiving a promotion over a female employee who has more experience and qualifications. In this situation the female employee may be able to prove that the employer has directly discriminated against her due to her sex. Moreover, if this circumstance was reversed the male employee would be able to make the same claim.
- A female director is recruiting for a position within her team however only chooses a male applicant due to her preference towards men as she feels they are less likely to start a family and require maternity leave.
Indirect discrimination occurs when an employer has a particular policy or rule in place that applies to both sexes however disadvantages one of the sexes. This instance happens when the organisation applies a “Provision, Criteria or Practice (PCP)”.
Examples of indirect discrimination:
- If an organisation decides to change the working shift patterns from 9am – 3pm to 11am – 5pm. The change in shift pattern may disadvantage a person who has caring responsibilities of children who need to be picked up from school.
- If an organisation advertised for applicants that are less than six feet tall, this provision would apply to all applicants; however, would disadvantage more men as it is more likely that women are under the certain high criteria.
Indirect discrimination, in some circumstances, may be justified in law. The organisation in question must provide evidence that the indirect discrimination is a “proportionate measure of achieving a legitimate aim”. Therefore, showing the discrimination is of rational business needs.
Harassment and sexual harassment relating to an employee’s sex are forms of sexual discrimination. This type of discrimination does not depend on whether the victim or perpetrator are of the opposite sex. There are three types of harassment and sexual harassment:
- Firstly, harassment is when an employer makes an employee feel humiliated, offended and/or degraded due to their sex.
For example, an employee making generalised comments about a certain sex which could make an employee feel uncomfortable and worry about his/her career.
- Secondly, sexual harassment can happen when an employer makes an employee feel humiliated, offended and/or degraded because they are treated by the employer in a sexual way. The Act protects employees from both physical and verbal treatment, this is often known as ‘unwanted conduct of a sexual nature’ such as sexual comments, jokes, touching and assault. Also included is the sending of emails of a sexual nature.
For example, a young female employee has received suggestive emails from an older colleague that has made her feel uncomfortable and degraded.
- Thirdly, covered under harassment is when an employer treats an employee differently due to their unwillingness to tolerate the harassment or sexual harassment they receive.
The Act protects employees who seek to enforce the rules governed within the policy. Thus it is unlawful to treat an employee differently if they have been involved in a discrimination case. Involvement could include an informal chat to a manager about discrimination treatment being received to making a claim regarding discrimination at tribunal.
Circumstances when it is lawful to be treated differently due to sex
The Act, however, does have circumstances where it is lawful to treat a certain sex differently, thus allowing employers to discriminate employees because of sex.
Examples where it is lawful to discriminate are:
- Being a particular sex is essential for a job and thus is an occupational requirement. For example, within public toilets the attendants responding to that particular service area may be required to be of the same sex.
- The armed forces can refuse employment or limit promotion and access to training if it is required for increased combat effectiveness.
- Some religious organisations can also restrict employment to just one sex if it is for religious purposes.
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