Sex discrimination

The Equality Act 2010 says you must not be discriminated against because

You are (or are not) a particular sex.
Someone thinks you are the opposite sex. This is known as discrimination by perception.
You are connected to someone of a particular sex. This is known as discrimination by association.

In the Equality Act sex can mean either male or female, or a group of people like men or boys, or women or girls.

What is sex discrimination?

This is when you are treated differently because of your sex in one of the situations that are covered by the Equality Act. The treatment could be a one-off action or as a result of a rule or policy based on sex. It doesn’t have to be intentional to be unlawful.

There are some circumstances when being treated differently due to sex is lawful, explained below.

Different types of sex discrimination

There are four main types of sex discrimination.

Direct discrimination

This happens when, because of your sex, someone treats you worse than someone of the opposite sex who is in a similar situation.

For example, a nightclub offers free entry to women but charges men to get in.

Indirect discrimination

Indirect discrimination happens when an organisation has a particular policy or way of working that applies in the same way to both sexes but which puts you at a disadvantage because of your sex.

For example, an employer decides to change shift patterns for staff so that they finish at 5 pm instead of 3pm. Female employees with caring responsibilities could be at a disadvantage if the new shift pattern means they cannot collect their children from school or childcare.

Indirect sex discrimination can be permitted if the organisation or employer is able to show that there is a good reason for the policy. This is known as objective justification.

Harassment

There are three types of harassment relating to sex.

The first type is the same for all of the protected characteristics.

This is when someone makes you feel humiliated, offended or degraded.

For example, a manager makes comments that there is no point promoting women because they go off to have children. Even though he doesn't direct these comments at a particular female employee, one of his staff is very upset by this and worries about her career. This could be considered harassment.

The second type of harassment is called sexual harassment. This is when someone makes you feel humiliated, offended or degraded because they treat you in a sexual way.

This is known as 'unwanted conduct of a sexual nature' and covers verbal and physical treatment, like sexual comments or jokes, touching, or assault. It also covers sending emails of a sexual nature, or putting up pornographic pictures.

For example, a university lecturer makes sexual jokes to one of his female students and implies that she will pass her exams if she sleeps with him.

The third type of harassment is when someone treats you unfairly because you refused to put up with sexual harassment.

For example, a manager invites one of his female employees home after they have been out for a drink. She declines. A couple of weeks later she is turned down for a promotion. She believes this is because she turned down her boss's proposition.

It can also cover unfair treatment even if you had previously accepted sexual conduct.

For example, the employee above did have a brief relationship with her boss. After it ended, she applied for a promotion but was turned down. She believes this is because the relationship with her manager had ended.

Harassment can never be justified. However, if an organisation or employer can show it did everything it could to prevent people who work for it from behaving like that, you will not be able to make a claim for harassment against it, although you could make a claim against the harasser.

Victimisation

This is when you are treated badly because you have made a complaint of sex related discrimination under the Equality Act. It can also occur if you are supporting someone who has made a complaint of sex discrimination.

For example, a male colleague is helping a female co-worker with their claim of sex discrimination and makes a statement at an Employment Tribunal. The male colleague is then sacked or treated badly by their employer. This is victimisation because of sex.

Circumstances when being treated differently due to sex is lawful

The Act has some exceptions that allow employers or organisations to discriminate because of your sex.

A difference in treatment may be lawful if:

Being a particular sex is essential for a job. This is called an occupational requirement. This includes some jobs which require someone of a particular sex for reasons of privacy and decency or where personal services are provided.For example: a gym could employ a changing room attendant that is the same sex as the users of that room. Similarly a women's refuge that only provides services to women could require its staff to be women.
An organisation is taking positive action to encourage or develop people of a sex that is under-represented or disadvantaged in a role or activity. For example: An engineering firm places a job advert for a trainee engineer stating that applications from women are welcome.This is because women are currently under-represented in the engineering industry.

Other exceptions

The armed forces can refuse to employ a woman, or limit her access to training or promotion if it means they can ensure the combat effectiveness of the armed forces.

In competitive sports the organisers can hold separate events for men and women because the differences in stamina, strength and physique would otherwise make the competition unfair.

There are several situations in which an organisation can lawfully provide single sex services. In all circumstances they must be able to justify it.

For example, offering a women-only support service to women victims of domestic violence is likely to be justifiable even if there is no parallel service for men due to insufficient demand.

A religious organisation can sometimes restrict employment to one sex if the role is for religious purposes.

For example, an orthodox synagogue can require its rabbi to be a man.

Further information

If you think you might have been treated unfairly and want further advice you can contact the Equality Advisory Support Service

Freephone 0808 800 0082

Textphone 0808 800 0084

Or write to them at

Freepost Equality Advisory Support Service FPN4431

The Equality and Human Rights Commission has also produced a range of legal guidance on the Equality Act which you can find here.

Last Updated: 28 Sep 2015