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Addressing sexual discrimination in the workplace

What is sex discrimination?

Sex is a protected characteristic under the Equality Act (2010). Treating somebody different on the basis of a protected characteristic is against the law.

There are four main types of sex discrimination:

  • direct
  • indirect
  • harassment
  • victimisation.

Discrimination can occur on the basis of a protected characteristic of your own (that you are male or female), because you are associated with someone with a protected characteristic (discrimination by association), or because you are perceived, whether correctly or incorrectly, to possess a protected characteristic (discrimination by perception).

Direct sex discrimination

Policy or act treats someone differently on the basis of their sex.

Indirect sex discrimination

Policy or act inadvertently disadvantages somebody on the basis of their sex.

Harassment

Unwanted conduct, sexual harassment or unfair treatment in relation to these

Victimisation

Individual is treated unfairly having made a complaint about sex discrimination.

Direct sex discrimination

Example: refusing to hire women or putting them forward for promotion because it is believed they will eventually go on to have children. The Equality Act also forbids positive discrimination, eg only hiring women because there are a disproportionate number of men, even if the women aren’t as qualified as male candidates.

Indirect sex discrimination

This can be more difficult to recognise, and particularly disadvantages women as they are more likely to work part-time than men to fulfil caregiving duties to children.

If an employer can show there is a reason that the policy cannot be adjusted to remove the unintentional disadvantage, the policy can be permitted.

Harassment

Split into three types:

  1. Applies to all protected characteristics - when somebody’s actions related to one’s sex cause offence, distress or humiliation (for example, making derogatory stereotypes about women’s abilities) – called 'unwanted conduct'.
  2. Sexual harassment – when someone acts in a sexual way that causes an environment of offence, distress or humiliation.
  3. When one is treated unfairly because they refused to accept unwanted sexual advances or harassment. It’s important to note that this applies even if the victim has previously participated in sexual conduct with the harasser.
Victimisation

This can also occur if you haven’t experienced the harassment yourself, but you’re providing support or evidence to someone who is making a complaint.

Addressing sex discrimination

The first key step in eliminating sex discrimination from the workplace is educating employees across all levels of seniority about what the law actually says.

Any work environment that makes people feel uncomfortable is not permissible. Harassment can often be labelled as ‘banter’ or ‘just a joke’, but it can have a significant impact on the victim and can make the work environment unpleasant and hostile.

Unwanted conduct can include a range of behaviour and actions. Although some may seem harmless, for example, nicknames or excluding someone from events on the assumption they would not enjoy it on the basis of their sex, it's also important to remember not everyone finds humour in the same things.

When recruiting, employers should keep all adverts and materials as sex-neutral as possible, eg if using illustrative pictures, include both men and women. Discrimination does not need to be intentional to be illegal.

Work policies, especially regarding parental duties, should be sex non-specific, and flexible working requirements should not be prioritised for one sex or the other.

Conclusion
  • Eliminating assumptions on the basis of sex makes a workplace more positive and inclusive, and protects employers from accusations of direct or indirect discrimination.
  • Making policies as neutral as possible is crucial.
  • Individuals must be educated in what the law says, and remember that their actions may have consequences beyond those which they intended.

Author:  Tina Chander is Head of Employment Law at Wright Hassall

DISCLAIMER: This article should not be regarded as constituting legal advice in relation to particular circumstances. It is merely a general comment on the relevant topic. If specific advice is required in connection with any of the matters covered in this article, please speak to Wright Hassall directly.

Published on 7th August 2019
(Last updated 13th November 2019)

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