Understanding Employer Obligations to Prevent Sexual Discrimination

In Short

• Recent amendments to the Sex Discrimination Act 1984 introduce a positive duty for employers to take reasonable and proportionate measures to eliminate unlawful sex discrimination.
• Employers are now required to proactively identify and address conduct that contributes to a hostile work environment on the grounds of sex.
• Non-compliance can lead to enforcement actions, legal penalties and reputational damage.

Tips for Businesses

Review and update workplace policies to ensure they address the new positive duty requirements. Implement regular training for all staff on acceptable behaviour and establish clear reporting procedures for misconduct. Consult an employment lawyer to ensure your actions are reasonable and proportionate for your organisation.

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Table of Contents

• What Was the Backdrop for the Change?
• What Makes a Workplace Environment Hostile on the Grounds of Sex?
• How Does the Amendment Affect My Employer Obligations? 
• Key Takeaways
• Frequently Asked Questions

As an employer, the amendments to the Sex Discrimination Act 1984 (SDA) in December 2022 have affected your workplace obligations. Following the amendment, employers have a positive duty to take “reasonable and proportionate measures” to eliminate unlawful sex discrimination as far as possible. This includes sexual and sex-based harassment, victimisation and a hostile working environment. This article focuses on the duty employers now have, specifically concerning hostile working environments on the grounds of sex. 

What Was the Backdrop for the Change?

In 2020 the government conducted a formal inquiry that resulted in a report called the Respect@Work Report. The Respect@Work Report found that sexual harassment is more likely to occur in workplaces that are “sexually charged or hostile”. 

Hence, the Report recommended a shift from the previous reactive model, which required complaints from individuals, to a proactive model, which would require positive actions from employers. Its recommendations led to a bill, which in December 2022 became the Respect at Work Act 2022.

What Makes a Workplace Environment Hostile on the Grounds of Sex?

Under the law, a workplace environment is hostile on the grounds of sex if a reasonable person, having regard to all the circumstances, would have anticipated the possibility of the conduct resulting in a workplace environment that is offensive, intimidating or humiliating to a person of a particular sex because of:

• the sex of that person; 
• a characteristic that generally relates to a person of that sex; or
• a characteristic a person is generally thought to have because of their sex.

A person (the perpetrator) will have subjected another person (the person exposed) to a workplace environment that is hostile on the ground of sex if the:

• perpetrator engages in hostile conduct in a workplace where they, the person exposed, or both persons work; or
• person exposed is subjected to hostile conduct in the workplace at the same time as, or after, the hostile conduct occurs.

 Examples of hostile conduct on the grounds of sex may include:

• displaying obscene or pornographic materials; and
• using offensive language, jokes, or sexual innuendo which feel hostile to the members of one sex.

Who is Not Covered?

The conduct must occur in either person’s workplace for the prohibition to apply. Hence, the amendment is not intended to cover conduct that occurs between two customers of the business. 

How Does the Amendment Affect My Employer Obligations? 

In short, employers must take a proactive approach to eliminate hostile work environments. To take it back a step, it is helpful to distinguish a hostile environment on the grounds of sex from a typical case of sexual or sex-based harassment. 

Difference Between a Hostile Environment on the Grounds of Sex and Sexual Harassment

In the case of sexual or sex-based harassment, there is an:

• interaction; and
• incident, which can lead to an allegation of sexual harassment.

This interaction likely involves specific people (i.e., a victim and a perpetrator) and a specific incident. Consequently, the victim could:

• speak out about the incident against the perpetrator; and
• identify the harassment in specific “time and place” terms. 

These factors make it likely that the employer will become aware of the issue through the instigation of other people. That is to say, the employer does not need to initiate anything for the issue to ‘come across their desk’. Instead, they receive a complaint that they can act upon. By then eliminating the conduct, the employer can take steps to discharge their positive duty. 

Unlike sexual harassment, conduct that constitutes a hostile environment on the grounds of sex:

• does not need to be directed at a particular person, meaning there is no specific victim to make the allegation in the same way there is for a specific incident occurring between specific people; and
• may be subtle, pervasive or insidious, meaning it may not lend itself to being easily identified in specific “time and place” terms. 

For these reasons, it is less likely that people will bring the problematic conduct to the employer’s attention.

Hostile Environment on the Grounds of Sex and an Employer’s Duty

Under the new positive duty, employers must take reasonable and proportionate steps to eliminate conduct that subjects another person to a hostile work environment on the grounds of sex. Therefore, the onus is on employers to:

• proactively look for any indication that there may be conduct contributing to a hostile work environment on the grounds of sex;
• take reasonable and proportionate measures to stop such conduct without delay.

In this sense, the new duty emphasises an employer’s responsibility for setting up the systems, tone and values that make up the workplace environment. Consequently, the law expects employers to assess the workplace environment proactively and to deliberately steer it away from being hostile on the grounds of sex.

Employment Essentials Factsheet

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Key Takeaways

As an employer, you have a new duty to:

• proactively identify any indication that the work environment is hostile on the grounds of sex; and
• take steps to eliminate the conduct causing the hostility.

You should note that even if the perpetrator(s) do not direct their conduct to a particular person, it may still create a hostile work environment on the grounds of sex.

If you need help understanding your new positive duty, our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.

Frequently Asked Questions