The Sex Discrimination Act 1984 (the Act), now obliges Australian employers and persons conducting a business to take “reasonable and proportionate measures” to eliminate, as far as is possible, the following behaviours:
- discrimination on the ground of sex in a work context;
- sexual harassment in connection with work;
- sex-based harassment in connection with work;
- conduct creating a workplace environment that is hostile on the ground of sex; and
- related acts of victimisation.
Employers have a legal obligation to not only to refrain from discriminatory practices but also to actively eliminate them under the positive duty provisions. This duty requires employers to take proactive steps to create an inclusive and equitable work environment for all employees, regardless of gender or sex. The Australian Human Rights Commission (the Commission) has been empowered to investigate and enforce compliance with the positive duty.
The recommended approach to complying with this positive duty?
In the publication, Guidelines for Complying with the Positive Duty under the Sex Discrimination Act 1984 (Cth), the Commission sets out guiding principles which organisations should use in deciding what is required to comply with the positive duty. Those principles are:
Consultation: consulting with workers about what they believe is required for their workplace to be safe and respectful.
Gender equality: evaluating and taking steps to improve gender equality in the workplace. This involves taking action beyond equal treatment to achieve equal outcomes.
Intersectionality: recognising that disrespectful and unlawful workplace behaviour may have an increased impact on different people due to the other forms of inequality the person may face.
Person centred and trauma informed approaches: this principle refers to the two complimentary ways to address unlawful conduct.
The Seven Standards For Satisfying the Positive Duty
The Guidelines set out seven standards that the Commission requires organisations and business to meet to satisfy the positive duty.
Leadership: senior leaders should understand their obligations under the Act and are responsible for ensuing that appropriate measures are in place to prevent and address unlawful sex discrimination. Senior leaders should regularly review the effectiveness of the measures in place.
Culture: senior leaders should foster a culture which is respectful and supports gender equality and inclusivity in which workers can report unlawful conduct without reprisals.
Knowledge: policies supporting safe and respectful conduct and prohibiting unlawful discrimination are developed and promulgated throughout the organisation.
Risk management: unlawful sex discrimination should be viewed as a health and safety risk and a risk management approach adopted to deal with that risk.
Support: senior leaders should ensure that support is available to workers who experience or witness unlawful sex discrimination.
Reporting and response: clear processes should be available to workers for reporting unlawful sex discrimination. Senior leaders should ensure that the responses are appropriate, timely and consistent, whilst appropriate support is provided to complainants and witnesses.
Monitoring, evaluation and transparency: senior leaders should ensure that data is collected regarding any incidents of unlawful sex discrimination in the workplace and that measures to eliminate discrimination are monitored and evaluated.
Practical Steps to Comply with the Positive Duty
Given the guiding principles and the seven standards, what practical steps can be taken by organisations to satisfy the positive duty?
- Educate and train staff: education about sex discrimination laws, what constitutes discrimination, and how it can manifest in the workplace. Training sessions should cover unconscious bias, stereotypes, and the importance of fostering a respectful workplace culture.
- Review policies and procedures: regularly review and update existing policies and procedures to ensure they align with current legislation and best practice in eliminating sex discrimination. Policies should cover recruitment, promotions, training opportunities, grievance procedures, and codes of conduct.
- Conduct regular audits: implement regular audits to assess the workplace for any systemic barriers or discriminatory practices, reviewing areas such as pay equity, career progression, and access to flexible work arrangements.
- Promote diversity and inclusion programs: actively promote diversity and inclusion programs, such as setting measurable diversity targets, and celebrating diversity through events and campaigns.
- Establish clear reporting mechanisms: ensure there are clear and accessible channels for employees to report instances of discrimination or harassment. Encourage a culture where employees feel safe and supported when raising concerns and ensure that complaints are handled promptly and confidentially.
- Implement equal opportunity recruitment practices: Adopt recruitment practices that promote equal opportunity and diversity, such as using gender-neutral language in job advertisements or implementing blind recruitment processes.
- Provide Flexible Work Arrangements: recognise that traditional work structures may disadvantage certain group and consider offering flexible work arrangements, such as remote work options or flexible hours, to accommodate employees’ diverse needs and responsibilities.
- Address pay equity: review pay structures to ensure equity across genders.
- Foster a culture of respect and inclusion: senior leaders should actively promote a culture of respect and inclusion at all levels of an organisation, by encouraging open dialogue and feedback.
- Engage with external resources: consider utilising external resources, such as industry associations, diversity consultants, and legal advisors to stay informed about best practices and legal obligations regarding sex discrimination.
Conclusion
By proactively addressing the positive duty to eliminate unlawful sex discrimination, employers in Australia not only fulfill their legal obligations but also create a more productive and harmonious workplace.
