This occurs where a person is treated unfavourably because of their sex or because of characteristics that people of that sex are thought to have. For example, it is sex discrimination to set inconsistent dress codes for men and women patrons at a nightclub (for example, women can wear sandals but men cannot). It is also sex discrimination to refuse to hire men in a helping profession because they are assumed to lack empathy.
Areas of discrimination on basis of sex under SA law
Under the Equal Opportunity Act 1984 (SA) it is illegal to discriminate on the basis of sex in the following areas:
- sale in land
- conferral of qualifications
- provision of goods and services
- membership of an association that has both male and female members
- special measures intended to achieve equality
- sport: where strength, stamina or physique are relevant in competition
- insurance, where based on reliable actuarial or statistical data
- religious bodies in relation to the ordination or appointment of priests, ministers or religion or members of a religious order or in relation to training of priests, ministers, etc
- employment not connected with an employer's business
- employment for which it is a genuine occupational requirement that a person be of a particular sex
- associations, where it is not practicable for a service or benefit to be used or enjoyed simultaneously by both men and women and the same or an equivalent service is provided at other times
- single-sex associations (eg clubs and groups)
- single-sex schools, colleges and boarding houses
- accommodation in one's own home
- single-sex accommodation provided by not-for-profit organisations
Areas of discrimination on basis of sex under Commonwealth law
The Sex Discrimination Act 1984 (Cth) prohibits discrimination on the basis of sex in:
- superannuation, regarding exercise of discretion in relation to payment of benefit
- qualifying bodies
- goods, services and facilities
- administration of Commonwealth laws and programs
- requests for information
- employment in a private household
- employment, where it is a genuine occupational requirement of the job
- education, single-sex educational institutions
- where person offering the accommodation or a near relative resides there and it is for no more than 3 other persons
- where provided by a religious body
- where provided by a charitable or other not-for-profit organisation solely for members of one sex
- residential care of children
- the provision of services the nature of which is such that they can only be provided to members of one sex
- disposal of land by way of will or gift
- religious bodies, except where that religious body is providing accommodation in connection with Commonwealth Aged Care [see section 23(3A) of the Sex Discrimination Act 1984 (Cth)]
- educational institutions established for religious purposes
- voluntary bodies
- acts done under statutory authority e.g. an order of a Court or tribunal or decision made under an industrial award or agreement
- insurance and superannuation, where based on reliable actuarial or statistical data
- combat duties
Making a complaint
There is no cost to lodge a complaint in either the Equal Opportunity Commission (SA) or the Australian Human Rights Commission. For forms and guides on making a complaint see the websites of the Equal Opportunity Commission and the Australian Human Rights Commission.
The Fair Work Commission can also take complaints of discrimination in work on the ground of sex. See further the Employment law chapter on general protections.
The Australian Human Rights Commissioner may decide not to take any action for complaints on acts committed more than 6months previously.
The Equal Opportunity Commission requires a complaint to be made within 12 months of the event being complained of, but can grant extensions of time.
General Protections claims relating to dismissal have a 21 day time limit (from the date of notice of dismissal) in the Fair Work Commission.
Same-sex couple refused hotel manager jobs
Kevin and Todd, in a same-sex relationship, applied for a position as a Hotel Managing Couple for a hotel in an Adelaide suburb. The hotel owner appeared keen to appoint them, but cancelled the interview at the last minute, making a comment about "wanting a woman behind the desk." Todd had flown from Sydney for the interview.
When Kevin and Todd made a complaint, the hotel owner denied making the comment about a woman and stated that he didn't want Todd to travel from interstate for the interview because he could not guarantee they would be successful in getting the position. He had been given a poor report by one of Kevin's referees.
Outcome: At conciliation the hotel owner agreed to pay for Todd's flight from Sydney.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.