Sex Discrimination Laws
Sex Discrimination Laws, laws governing the unfavourable treatment of people, either directly or indirectly, on the grounds of their sex or marital status.
II HISTORICAL PERSPECTIVE
Historically, women have been the victims of sex discrimination, as enshrined in the law itself. The right to vote, for example, was denied to most women until the 20th century, even as the right was extended to include all men regardless of their social position. Until the 19th century, married women in Britain could not hold property independently of their husbands, and it was not until 1919 that the law forbade the disqualification of women from the professions or public offices.
This change in the law did little or nothing, however, to prevent continuing unfavourable treatment of women by people in positions of authority, who were almost all men. Concern about this, prompted chiefly by the growing women’s movement in the 1970s, led to legislation in the United Kingdom, such as the Equal Pay Act (1970), which came into effect in 1975, and the Sex Discrimination Acts of 1975 and 1986, all intended to give women enforceable rights to be treated fairly. Men also have the legal right to be treated equally.
III ANTI-DISCRIMINATION MEASURES
Under the Sex Discrimination Act 1975, a person has the right not to be subjected to less favourable treatment on the grounds of sex and can sue the discriminator for damages if there is discrimination. It is applicable, typically, in the provision of employment, services, and education.
Discrimination, either direct or indirect, is prohibited. Direct discrimination occurs, generally, when a benefit is denied to a woman simply because she is a woman: this law has been used to enforce equality in the workplace, as well as requiring, for example, “men-only” public bars to admit women (although the law does not extend to private clubs, which are free to restrict their membership, as many do, to one sex only). Indirect discrimination occurs when a benefit or employment opportunity depends on a requirement that is more likely to be met by one sex than another, and which cannot be objectively justified against job-related criteria. For example, it may be unlawful to deny pension benefits to part-time workers, given that a higher proportion of such workers are women with childcare responsibilities.
In order to give effect to the Acts, the Equal Opportunities Commission was established in Britain. It operates by supporting test cases under the Acts, investigating employers suspected of widespread discrimination, and promoting equality of opportunity, via, for example, good practice guides for employers. While it is funded by the government, it is an independent body and has successfully sued the government on behalf of part-time workers, the majority of whom are female.
There is further protection against discrimination in the Equal Pay Act 1970, which provides that there should be no discrimination with regard to employees’ pay on the grounds of sex. European law has become increasingly significant in this area since the treaty of the European Union guarantees equality of treatment on the grounds of sex. British law has been significantly affected, in particular, in extending the right to equal pay to include those doing jobs of equal value, and not just those doing the same job.
The anti-discrimination laws have limits that some feel has restricted their usefulness. For example, indirect discrimination may be justified if an employer can demonstrate that the potentially discriminatory requirement can be objectively justified: the requirement that a warehouse operative is able to lift a 40 kg (88 lb) weight may be justified even though it discriminates against women. This is a very difficult area and is dependent on individual circumstances.
Perhaps most significantly, discrimination can be very difficult to prove, although employment tribunals, to which cases are put, can draw inferences from the evidence put before them. Once a claimant has proved facts from which an inference of discrimination can be drawn, a 2003 amendment to the Sex Discrimination Act requires the employer to prove that it did not discriminate—in other words, the burden of proof is reversed.
Claims made under the Sex Discrimination Acts must be lodged with an employment tribunal within three months, minus one day, of the alleged discriminatory act. Claims involving pay under the Equal Pay Act can be lodged during the period of employment or within six months of leaving. The tribunal has the discretion to extend these time limits where it appears just and equitable to do so.
There are some advocates of a further stage of legislation that would require employers, for example, to hire a minimum quota of women. Positive action on this matter, however, has been found to be unlawful by the European Court of Justice.
Related provisions also provide protection against discrimination on grounds of sexual orientation and gender reassignment.