What is Sex Discrimination?

The Sex Discrimination Act 1975 (‘SDA’) covers four types of discrimination: direct discrimination, indirect discrimination, victimisation and harassment. There is no need for such discrimination to be intentional or overt. Tribunals and courts have long–recognised the hidden nature of much discrimination.

Direct discrimination

Direct discrimination is when you are treated less favourably than someone of the opposite sex in the same circumstances as you because of your sex. For example, in an employment context dismissing you or failing to promote you because you are a woman; in a non-employment context admitting only boys to a GCSE course in electronics at a mixed school would be direct discrimination; so would offering hire-purchase facilities only to men, or half-price entry to a disco only to women.

Unreasonable behaviour is not necessarily discriminatory. The issue is whether you have been treated differently and less favourably than a person of the opposite sex. Therefore a manager who bullies both men and women is not unlawfully discriminating against women.

Not all differences in treatment are discriminatory. In order to make out a claim for direct discrimination you will need to identify an actual or hypothetical comparator of the opposite sex whose circumstances are ‘the same’ or ‘not materially different’ to yours, but who nonetheless is treated differently. So it is acceptable for a male candidate to be promoted over a female candidate if the reason for the promotion is that he had more experience.

Indirect Discrimination

There are now two definitions of indirect discrimination.

In employment or vocational training indirect discrimination occurs when an employer applies a provision, criterion or practice which, although it appears neutral, would put women at a particular disadvantage when compared to men. For example, a requirement that all employees work full-time may indirectly discriminate against women, because more women than men work part-time due to child care responsibilities.
In the other areas of the SDA (e.g. education, provision of housing, provision of goods and services, public authorities), indirect discrimination occurs when a condition or requirement is applied which disproportionately disadvantages one sex more than another. The proportion of one sex who can comply must be considerably smaller than the proportion of the other sex who can comply, and the individual who complains must suffer because he or she cannot comply. For example, an after-school computer club open only to pupils taking an examination course in computer science could be against the law if hardly any girls took the examination course. Similarly, a housing association which excluded single parents from membership could be indirectly discriminating because the vast majority of single parents are women.

Both forms of indirect discrimination are subject to the defence of justification. In employment cases the employer may be able to argue that the provision, criterion or practice is justified if it is a proportionate means of achieving a legitimate end. In other cases the provider may be able to argue that the condition or requirement was justifiable irrespective of the sex of the person to whom it is applied. In both cases, the defence is an objective one and whilst a court or tribunal will take into account an employer’s or provider’s business needs, the tribunal will also reach its own decision in balancing the needs of the employer or provider against any discriminatory effect. The test in employment cases is probably stricter and will require an employer to demonstrate that a discriminatory measure is both appropriate and necessary, and require an employer to adduce evidence to that effect.

Victimisation

The SDA also protects you against victimisation for taking action under either the SDA or the Equal Pay Act 1970. This provision makes it unlawful to treat you less favourably than anyone else because you have done any of the following:

Made a complaint under either of the Acts.
Helped someone else to make a complaint.
Given evidence in a court or tribunal in a case under either of the Acts.
Accused someone of breaking either of the Acts.
Taken any other action in connection with either of the Acts.

So, for example, it would be an act of unlawful victimisation for a former employer to refuse to provide an ex-employee with a reference because that ex-employee has brought proceedings against him or her.

Victimisation also occurs where the discriminator knows that you intend to do any of those things or suspects that you have done, or intend to do, any of them.

You do not need to show that the discriminator was consciously motivated by the fact that you carried out one of the above protected acts. Allegations of discrimination must be made in good faith in order to be protected by the victimisation provisions of the SDA.

Sexual Harassment

Harassment on the grounds of sex in the fields of employment and vocational training and in the exercise of public functions is a separate unlawful act. There is currently no separate act of harassment in relation to the provision of education, housing, goods facilities or services; although such provisions are due to come into force by 21 December 2007 in order to comply with the EC Goods and Services Direction (2004/113). Until such a provision is enacted, a woman can only claim for sexual harassment in respect of the provision of education, housing, goods facilities or services if it constitutes direct sex discrimination.

Harassment is defined as:

a) Where on the grounds of your sex, you are subjected to unwanted conduct which has the purpose or effect of violating your dignity, or creating an intimidating, hostile, degrading, humiliating or offensive workplace environment for you. It is thought that this definition will include gender-specific abuse.

b) Unwanted verbal or non-verbal or physical conduct of a sexual nature that has the purpose or effect of violating your dignity, or creating an intimidating, hostile, degrading, humiliating or offensive workplace environment for you. The act does not define what constitutes sexual nature, but would include inappropriate touching and comments about the way you look, your sex life, and other sexual remarks.

c) Less favourable treatment on the grounds of you having rejected conduct constituting harassment.

In considering claims of harassment, a tribunal or court must consider whether the conduct would reasonably be considered as having that effect in all the circumstances, as well as the particular perception of the person bringing the claim. The requirement of reasonableness introduces an objective element to the consideration of harassment, rather than just relying on whether the employee genuinely felt harassed. As harassment is a separate unlawful act, it is not necessary to point to a comparator (unlike claims for harassment made under the provisions for direct discrimination).
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A victim of harassment may also have a separate claim under the Protection from Harassment Act 1997.

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