Sexual discrimination

Amanda Beattie

Amanda Beattie

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25 Nov 2019

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Sexual discrimination can be difficult to root out in organisations. Especially when it’s not obvious that it’s happening.

Here, we highlight everything you need to know about discrimination of sexuality. This includes a detailed breakdown of the types of discrimination employees can be subject to. Your legal responsibilities. And, frequently asked questions regarding discrimination in the workplace.

Let’s start with the basics:

 

What is sex discrimination?

If an individual is treated unfairly because they are a man or a woman, then this is sexual discrimination. This applies to men and women equally.

Also, a man can discriminate against a man on the basis of sex. So can a woman against another woman. And, a woman against a man.

Significantly, it’s unlawful for an employer to discriminate against employees because of their sex.

 

Sexual discrimination law

The main piece of legislation relating to this is the Equality Act 2010. It protects all individuals from sexual discrimination at work—regardless of gender.

Prior to this, the Sex Discrimination Act 1975 protected men and women from discrimination on grounds of sex or marital status. However, this was repealed when the Equality Act came into force.

In particular, the Act prohibits discrimination because an individual:

  • Is (or isn’t) a particular sex
  • Is presumed to be the opposite sex (discrimination by perception)
  • Is connected to someone of a particular sex (discrimination by association)

The act defines ‘sex’ as either male or female, or a group of people, such as men, boys, women or girls.

Sex discrimination in employment law is a big topic, and there are different types of discrimination that can occur. It’s important to recognise all of them if you want to effectively stamp it out in your workplace.

 

Types of sexual discrimination

There are four main types defined under the Equality Act 2010. Here, we’ll break down each one, with sex discrimination examples, so you can spot it when it happens.

Direct sex discrimination

This is the most obvious type, and the easiest to spot. Direct discrimination occurs when, because of their sex, an employee is treated worse than someone of a different sex in a similar situation. One of the ways this can happen is via job advertisements.

i.e. a job ad for a salesperson states that the role would be better suited to a man than a woman.

There are instances where recruiting a particular sex is legal. But we’ll go into the specifics of that later on.

It’s important to note that direct discrimination applies when any of the three aforementioned criteria set out by the Equality Act are met. In other words, it can occur when someone is treated less favourably because of their perceived sex or by association too.

Indirect sex discrimination

This is a little more complex. Indirect discrimination occurs when a workplace rule or practice disadvantages a particular sex. If the policy applies to all staff, it might seem like it’s fair, however, this isn’t always the case. The most quoted example of this in relation to sex discrimination is this:

i.e. a job role is advertised as requiring the employee to be six feet tall. This eliminates the possibility of many women applying.

Much like direct discrimination, there are cases where it’s legal to discriminate. Usually on health & safety grounds—but more on that later.

An employee can only challenge a practice or rule if they’re personally affected by it. However, when they come to prove that it’s discriminatory, they must show that others with the same protected characteristic are also disadvantaged.

Harassment

This type of discrimination is broken down into three types:

  1. Unwanted conduct relating to a person’s sex. The result of this is a distressing, humiliating, or offensive environment for the employee.
  2. Unwanted conduct of a sexual nature. This is commonly known as sexual harassment.
  3. Unfavourable treatment due to rejection of sexual harassment, or because they’re a victim of it.

Here are examples of all three:

  1. A woman is subject to a number of inappropriate jokes relating to her gender by colleagues around the office.
  2. An employee seeking a promotion is told by their boss that they’ll get the job if they sleep with him.
  3. An employee had a brief fling with her boss. Afterwards, she applied for a promotion but was turned down.

Victimisation

The final type applies if an employee is treated unfavourably for making a complaint, or supporting a complaint about sex discrimination.

If following this, the employee is turned down for a promotion, dismissed, or subject to abusive behaviour, then this could be considered victimisation.

 

When does sex discrimination law not apply?

You may have heard the term ‘legal discrimination’ and wondered how and when it applies, if at all. In truth, there are instances when sex discrimination might not apply. But you still need to be cautious.

It may be lawful if being a particular sex is essential for the job role.

i.e. an audition for a male lead role in a theatre production

Or, for reasons of privacy and decency.

i.e. recruiting for a female changing room attendant for a female changing room at a gym

You may also be able to lawfully discriminate in the name of positive action. You can hire someone based on their sex (or other protected characteristic) providing it’s underrepresented in your organisation. However, you need to be able to show that they’re equally matched with other candidates who have applied for that role.

 

Other exceptions

The armed forces can refuse to employ a woman if it means ensuring combat effectiveness. Competitive sports can also hold separate events for men and women because of the differences in physique, strength, and stamina.

Some organisations can offer one-gendered services.

i.e. a support service for female domestic abuse victims employing only women

And, some religious organisations can restrict employment to one sex.

 

What about gender discrimination?

Gender discrimination in the UK is also covered by the Equality Act 2010. In legal terms, they mean basically the same thing. In broader terms, there’s a difference between the two.

 

Gender vs Sex

The terms are often used interchangeably, however, ‘sex’ typically refers to a person’s biological differences. The term gender—on the other hand—refers to social roles based on sex or personal identification.

The distinction becomes important (in legal terms) when considering discrimination due to gender reassignment. This is a protected characteristic under the Equality Act 2010.

While this means it is a separate issue to sex discrimination, the types of discrimination outlined about still apply.

 

FAQs about sexual discrimination in the workplace:

Q: Do I need to have a discrimination policy in place?

A: No. Although you’re legally required to not discriminate against employees, you don’t need a written policy. However, it’s a good idea to produce one. You can refer back to it if sex discrimination occurs. If you need help putting one together, Croner can produce and review your documentation for you.

Q: If I use my instincts to select job applicants, does this count as discrimination?

A: It could. Your instincts might actually be discriminatory, even if you don’t intend it. Be wary of unconscious bias. The best way to avoid this is to have more than one person sit in on job interviews and be involved in the recruiting decision. Always ensure your criteria are objective and requirements are justified.  Finally, keep full records of the interviewing process and all candidate applications.

Q: If discrimination occurs, what process should I follow?

A: First, try to resolve the matter informally. It’s worth conducting an investigation into the incident(s) and keeping the employees in the loop. Refer back to your discrimination policy and disciplinary procedure. Once you’ve conducted a thorough investigation, you may consider taking disciplinary action against the individual, including dismissal. Make sure they’re aware of their right to appeal whatever decision you reach.

 

Further information

Incidents of sexual discrimination are often complex and emotional. They can very easily end in a tribunal claim, which is why it’s vital to handle any complaints correctly.

If you’re uncertain, speak to a Croner adviser for expert support from the first day of the complaint, through the investigation, and even at the tribunal. Call today on 0808 145 3380.

About the Author

Amanda Beattie

Amanda represents corporate clients and large public bodies, including complex discrimination and whistleblowing claims. Amanda also drafts and delivers bespoke training regarding all aspects of employment law, including ‘mock tribunal’ events; in addition she also frequently drafts employment law articles for various publications for Croner and their clients.

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