Sex Discrimination:
A Guide to the Sex Discrimination Act
- Lost your job because you are pregnant?
- Been sexually harassed?
- Been denied a
promotion becase you are a woman?
If the answer is yes, the Sex Discrimination Act may be able to help you.
- What does the Sex Discrimination Act do?
- What is sex discrimination?
- What is sexual harassment?
- When does unlawful sex discrimination happen?
- What can you do about it?
- What will happen to your complaint?
What does the Sex Discrimination Act do?
The Act means it is against the law to:
- discriminate against you because of your sex, marital status, or pregnancy
- sexually harass you
- dismiss you from your job because of your family responsibilities
You can complain to the Human Rights and Equal Opportunity Commission if you experience treatment that you think may be unlawful under the Act. Your complaint will be referred to the President of the Commission for inquiry or attempted conciliation. The Commission also carries out research and education in relation to sex discrimination, and can examine laws to make sure they are consistent with the Act.
What is sex discrimination?
Sex discrimination means being treated unfairly because of your sex or marital status or because you are pregnant or potentialy pregnant. It also includes being dismissed from employment because you have family responsibilities.For example, if the manager of a company said that all male employees would receive a wage increase, but all the female employees would not, this would be "direct" sex discrimination.Discrimination also exists where there is a requirement (a rule, policy, practice or procedure) that is the same for everyone, but which has an unfair effect on particular groups.For example, if the manager of a company said that employees who had worked continuously for the company for 20 years would receive a wage increase, it is likely that many more women than men would miss out on the increase. Many women interrupt their working lives to have children and would not have worked continuously in one company for 20 years. This kind of unfair treatment is called "indirect" sex discrimination.
What is sexual harassment under the SDA?
Sexual harassment is a type of sex discrimination. Sexual harassment is any unwanted or unwelcome sexual behaviour which makes a person feel offended or humiliated and that reaction is reasonable in the circumstances. It has nothing to do with mutual attraction or friendship.
Where does unlawful sex discrimination happen?
The Act means it is unlawful to discriminate in many public areas of public life. The most common include:
- employment
- awards and enterprise bargaining
- insurance and superannuation
- education
- goods, services or facilities
- accommodation and housing
- buying or selling land
- Commonwealth laws and programs
Employers can be held legally responsible for sex discrimination or sexual harassment by employees.
What can you do about it?
Sex discrimination is against the law and you have a right to take action. You may be able to resolve the situation yourself by pointing out that it is unlawful. If not, you can lodge a complaint with the Human Rights and Equal Opportunity Commission. You need to write to the Commission describing what happened, when and where, who was involved and anything else you think is relevant. You should write to the Commission within 12 months of the alleged act of discrimination.
A complaint can be made by:
- anyone directly affected by the discrimination
- anyone included in a group of people affected by the discrimination on behalf of the group (this is called a representative complaint)
- a trade union on behalf of its member/s.
You can talk confidentially to a Complaints Information Officer at the Human Rights and Equal Opportunity Commission about your complaint by calling the Complaints Infoline on 1300 656 419. They can also tell you what other avenues may be open to you. For more information visit the Complaints Information section. All States and Territories also have laws against sex discrimination and sexual harassment.
What will happen to your complaint?
There are three stages that your complaint can go through. The complaints proces is private, confidential and free. You can decide no to continue at any time. You do not need to have legal representation. It is against the olaw for anyone to victimise you because you have complained to the Commission.
1. Enquiries - Do you have a sex discrimination complaint?
An initial telephone conversation to the Complaints Infoline will usually help you to determine whether or not your complaint can be addressed under the SDA. The Commission can arrange to provide an interpreter in your language if required.
If you decide to make a complaint to the Commission you must put it in writing. The Commission cannot exercise any of its legal powers unless the complaint is in writing.
If the Commission decides that your complaint comes within the terms of the SDA , (or under the other responsibilities of the Commission) investigation will follow. If not, the Commission will write to you explaining that the Commission cannot help you and why. A complaint can be made in any language. The Commission wil also arrange to have a complaint translated into English if it is submitted in another language. If you are unable to put your complaint in writing, the Commission will provide appropriate assistance.
2. Investigation - Is there evidence that you have been discriminated against.
The Investigation/ Conciliation Officer who handles your complaint on behalf of the President, will contact you to discuss your complaint and how it will be handled by the Commission or its delegate.
The President will write to the orgainisation or person that you are making the complaint about to inform them of the complaint and to seek a response. The President may ask for documents and relevant statements.
The Investigation/ Conciliation Officer will attempt to work out what happened and what you and the respondent agree and disagree on.
If the complaint is clearly not supported by enough information it may be terminated or if there is enough evidence to support your complaint we will try to conciliate your complaint.
3. Conciliation - Can an agreement be reached?
The Investigation/ Conciliation Officer assists the parties to try to reach an agreement. The Investigation/ Conciliation Officer may call a 'Conciliation Conference' to give both sides a chance to talk through the situation without legal formalities.
If settlement is agreed upon by both parties, the complaint is closed.
If the complaint cannot be conciliated it will be terminated by the President. The Complaintant may then apply to the Federal Court of Australia to have their original allegations heard and determined. Applications must be made within 28 days of the date of the notice of termination. A Federal Court filing fee of $50.00 will apply. It is neccessary to have a termination from HREOC in order to proceed to the Federal Court of Australia. Decisions of the Federal Court are legally binding.
