14 Aug Sex Discrimination in the Workplace: Case Example
Discrimination on the basis of sex is a significant focus of Australian anti-discrimination law. The Sex Discrimination Act 1984 (Cth) (SD Act) is the primary legislation which addresses sex-based discrimination.
Case Example under the Sex Discrimination Act
The case Magar v Khan [2025] FCA 874 (Magar) demonstrates the significant consequences for contravening the SD Act. In this case, the Federal Court of Australia made the largest compensation order ever awarded under the SD Act.
This included damages for sexual harassment, victimisation, aggravated damages and economic loss. The court also required the respondent to pay costs of the Applicant.
Please see more on costs in discrimination claims here.
The Court found the respondent had sexually harassed the applicant by making sexualised comments, asking intrusive questions, and directing sexual advances towards her. The Court also found the respondent victimised the applicant by sending her a legal threat for defamation.
The Court did not find that the applicant had been harassed on the basis of her sex. This was despite the finding that the workplace tolerated sexist behaviour. The applicant failed to prove a nexus between the workplace conduct and herself because no one communicated it to her or did so in a way she could hear or perceive it, causing this ground to fail.
Sex-based Discrimination
Conduct which may constitute sexual harassment includes unwelcome sexual advances, requests for sexual favours or other unwelcome conduct of sexual nature. A person must not engage in this conduct if a reasonable person anticipates that the person being harassed will feel offended, humiliated, or intimidated
Distinct from sexual harassment is the protection against harassment on the ground of sex.
Harassment on the ground of sex occurs if a person engages in unwelcome conduct of a demeaning nature because of:
1. the person’s sex
2. a characteristic that appertains to a person of their sex
3. a characteristic generally imputed to a person of their sex
A person can experience harassment even if no one directs the harassing conduct at them. It can include statements made or actions performed in the presence of the person harassed.
The SD Act specifically prohibits sexual harassment or harassment on the ground of sex from workplaces. This prohibition extends to persons conducting a business or undertaking, as well as employees at any level.
Victimisation under the Sex Discrimination Act
Victimisation occurs where a person subjects, or threatens to subject, another person to detriment because that other person has participated in, or plans to participate in, a proceeding under the SD Act or the Australian Human Rights Commission Act 1984 (Cth).
Section 47A of the SD Act includes broad actions that constitute participation in a proceeding, including:
1. making, or proposing to make, a complaint
2. bringing, or proposing to bring, proceedings
3. giving, or proposing to give, information in respect of proceedings
4. producing, or proposing to produce, documents in respect of proceedings
5. attending, or proposing to attend, a conference
6. appearing, or proposing to appear, as a witness
7. reasonably asserting, or proposing to asset, a right under anti-discrimination legislation
8. making an allegation of breach of the SD Act
Employers must ensure they are aware of their obligations under the various anti-discrimination legislation. Failure to comply with anti-discrimination legislation can result in significant consequences as seen in the case above.
Harassing conduct and victimisation can also breach other workplace protections, including those under the Fair Work Act 2009. Please see more on general protections matters here.
Please see more on redundancy during maternity leave redundancy during maternity leave here.
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