The Equality Act protects every individual from being discriminated against, directly or indirectly, on account of their gender. As with other types of discrimination, the law is very strict regarding gender or sex discrimination whether it is in the classroom, the workplace, the sports field or anywhere else. There are certain instances however, when gender discrimination is justified and not considered illegal. Understanding the different terms associated with sex discrimination in various settings will help you get a better idea of what constitutes sex discrimination and what doesn’t.
Recognising Sex Discrimination In The Workplace
While the law regarding sex discrimination in the workplace is clear that no current or prospective employee can or should be discriminated against because of their sex, there are several clauses and exemptions that can create a certain amount of confusion in employees’ minds. It is this confusion that prevents employees who are victims of discrimination from taking legal action and fighting for their rights.
The descriptions below explain different terms associated with sex discrimination in the workplace and clarify when a particular discriminatory incident is against the law and when it is considered legal.
- Direct discrimination – Direct discrimination involves treating a person less favourably than others because of their sex. For example, offering a male employee a higher salary than their female counterpart who is equally qualified and holds the same post in the organisation.
- Indirect discrimination – Indirect discrimination involves putting a certain gender at a disadvantage because of certain working practices or rules. For example, implementing a rule that can obviously be met only by male or female employees.
- Harassment – Harassment involves behaving in a manner that is offensive to a particular gender or encouraging other people to do so. An example would be humiliating an employee or creating an offensive environment through distasteful conduct related to a person’s sex.
- Victimisation – Meting out unfair treatment to an employee who has made or supported a complaint about sex discrimination is considered to be victimisation.
- Fairness for both sexes – Fairness for both sexes is a legal requirement in all workplaces. Under this clause, employers must treat men and women the same with regards to all aspects of employment including recruiting, training, salary, promotion avenues, dismissal and severance pay.
- Positive action v/s positive discrimination – The law against sex discrimination allows what is known as positive action in favour of one sex but it does not allow positive discrimination in favour of one sex. It is important to understand the difference between the two.
Positive action involves giving special encouragement to a particular sex to make up for lack of equal opportunity in the past, without actually discriminating against the other. For example, giving female employees extra training so they would qualify to apply for a particular job that has been earlier only been done by male employees. Positive action aims simply to level the playing field.
In positive discrimination the employer insists on recruiting, training and promoting only one particular sex for a job because they were earlier discriminated against when applying for the job. For example recruiting and training only male nurse applicants while ignoring female nurse candidates only because men were earlier discriminated against in this field. The aim should be to encourage male nurses without discriminating against equally qualified female nurses.
- Gender reassignment – According to the Equality Act, discriminating against someone who is undergoing gender reassignment is illegal. Gender reassignment is where an individual is changing from one sex to another. It is also unlawful to discriminate against someone who is planning to undergo or has already undergone gender reassignment.
- Genuine occupational qualifications – There are a few instances when giving one particular sex preference over the other is justified and within the law. In these cases, an individual of a specific gender may be hired because of what is known as genuine occupational qualification or GOQ.
Examples where GOQ comes into play could include:
- Hiring only male or female wardens in single sex hostels.
- Acting roles that can only be played by a male or female.
- Hiring only male or female teachers in single sex schools.
- Hiring only female workers as counsellors in a woman’s refuge on the basis that women who are victims of domestic violence would be reluctant to talk to another man about their experience.
If an employer can show that an employee needs to be a particular sex in order to do a specific job, they can employ someone of that sex without breaking the law. This is known as an ‘occupational requirement’ and is not considered as discrimination.
What You Can Do If You Think You Have Suffered Sex Discrimination
If you think are being discriminated against because of your sex there are a number of things you may be able to do.
- As a first step, it is always advisable to have a talk with the person or organisation that discriminated against you as it may have been unintentional and bringing it to their notice gives them the opportunity to rectify the situation.
- Most organisations would have a grievance procedure in place. If the informal discussion does not work, you should take it one step further and file an official complaint using guidelines suggested in the grievance procedure.
- Use the media to publicise your case.
- Hire an experienced lawyer and take legal action.
When deciding what action to take about sex discrimination, it is important to realise that any course of action you choose to take is likely to be complicated. It could involve confrontation with your employers or colleagues and may involve lengthy court proceedings.
If you want to take legal action about sex discrimination, remember that the onus is on you to prove that an employee of the opposite sex has been or would have been treated more favourably than you under similar circumstances.
The exception to this would be if you experienced discrimination because you were pregnant or on maternity leave. In this case, you would not be required to prove that someone of a different sex was treated more favourably than you. Your case would be considered based solely on the incident itself.