DISCRIMINATORY ADVICE

There are two main issues in the case and each one of them is going to be analyzed independently in this paper.

Issue one

  Did Sandy discriminate against Roxy in the hiring process on basis of age and parental responsibilities?

 Rule

Sexual discrimination Act 1984 prohibits discrimination on the ground of gender, pregnancy or potential pregnancy, and family responsibilities.

The ADA 2004 – age discrimination Act 2004 also prohibits discrimination based on age

 Application 

Employers are prohibited from treating potential job applicants less favorably than others just because of their age[1].   In the current case, during the recruitment process, Sandy asked Roxy about her age.  This might amount to discrimination especially given that Roxy was treated less favorably as compared to Betty who was hired on the spot specifically for being ‘young and hot’. This is similar to the decision in Willmott v Woolworths Ltd where Woolworth ltd conduct of asking for age information in it online application system was found to be discriminatory especially because it was asked before the applicant was offered the position[2].  However, employers are allowed to legally discriminate based on age if they can prove that age is an 'inherited requirement' of the job, in that those past a certain age limit cannot be able to competently carry out the inherited requirement of the job due to their age[3].  Therefore, sandy must show that Roxy was treated less favorably than Betty since her age made it difficult for her to carry out the inherited requirement of the job at her age. However, an attempt to do so would fail because the salesperson's job she had applied for did not have any inherent requirements that would make it difficult for her to work due to her age. It is also obvious that the reason Sandy did not hire Roxy was not because of any inherited job requirement but because she “did not need anyone with leather-looking skin ruining the vibe for customers”. This would be in line with the decision made in Qantas Airways Ltd v Christiede where the court ruled that Christiede, a pilot who was fired for attaining the age of 60 was discriminated against based on age since the age of 60 years old was not inherited job requirement[4].

Employers are also prohibited from discriminating against any potential job candidate on the ground of family responsibilities[5].  Unfortunately, during the hiring process, the conduct and answers asked by employers might lead to discrimination on such protected grounds. In the provided case, during the hiring process, sandy asked Roxy whether she has children. While being asked such a question would not lead to automatic discrimination, treating an individual less favorably because of them having children or any other family responsibility would be considered discriminatory. In the current case, sandy did not only as Roxy whether she had children but also went ahead to treat her less favorably despite her being experienced and in a better position to fill in the vacant position. She was treated less favorably because, despite being experience after working for LGBH‘s competitors, Betty who was inexperienced was hired on the spot mainly due to being 'young and hot' and Roxy was left out.  The action of treating her less favorably just because she had children amount to discrimination based on family responsibility.

In light of the discussion above, it is evident enough that Sandy's conduct of asking Roxy whether she had children amounted to discrimination based on family responsibility. Also, it is clear the sandy decision to ask Roxy about her age and later refusing to her as she did not need someone with “leather-looking skin that would spoil vibe for customers” also amount to discrimination since it does not meet the threshold of inherited job requirement which is except in the law. The court is therefore likely to conclude that Sandy discriminated against Roxy on the ground of family responsibilities and age. 

 

Issue two

 The second issue in the case is whether a sexual harassment offense against Betty was committed. So to reframe it, the issue is ‘has Betty be sexually harassed by Mark and is the employer liable?’

 Application

 Section 28 of the sexual discrimination Act 1984 prohibits any form of sexual harassment in the workplace. Three conditions must be fulfilled for conduct to be considered as sexual harassment under this Act. These are 1) conduct that is sexual in nature, 2) the conduct is unsolicited and unwelcomed, and 3) it could be reasonably expected to offend, intimidate or humiliate a person[6].

 Application

 Employers have a legal responsibility of ensuring their sexual harassment does not occur in their workplace[7].  In the current case, Mark made several remarks toward Betty.  For instance, he said to she looked hot"; that he would "…like to wear that bikini as good as her. He also said that “Betty probably looked good in her birthday suit too if he had the chance to look’”. In addition to the remark, Mark has consistently sent texts to Betty on her phone asking her to go on date and suggesting they can work on the same shift and get to know each other. mark conduct and the remark might amount to sexual harassment if they satisfy the three elements.  The first element that needs to be satisfied is that the conduct needs to be sexual in nature[8]. In the current case, Mark has made several remarks some of them which are sexual in nature. For instance, the remark that “Betty looked good in her birthday suit too if he had the chance to look” is very sexual in nature. Also, other suggestive comments that mark made toward Betty such as she looked 'hot' and as well as asking her for a date are all sexual in nature.  The conduct would also need to be unsolicited and unwelcomed for it to be considered sexual harassment[9]. In the current case, Mark made suggestive comments and send texts asking Betty for a date without her's approval. This means they were unsolicited. Also, the fact that they made Betty cry and get confused means they were unwelcome. Finally, mark conduct would need to have reasonably expected to offend, intimidate or humiliate Betty for it to be considered as sexual harassment[10]. Here the objective test is usually applied and it is obvious that an average man would have reasonably expected the remarks made by Mark to be humiliating especially given that they were made during a party where other members of staff could hear them. Also, they were demeaning, and as such an average man could have expected them to offend Betty.  this is similar to the decision made in Hill v Hughes where the court held that Mr. Hughes conducted which included sending an email containing romantic proposition, entering and remaining in the victim room while she wore a towel during a work trip, and lying on a bed in her room, wearing only a singlet and boxer shorts amounted to sexual harassment as the conducts were sexual in nature, were unwelcomed and a reasonable person could have expected such conduct to offend, humiliate and intimidate the victim.

 Despite the three elements for sexual harassment being met, one more factor would need to be met for the conduct to be considered sexual harassment i.e. the conduct must have been committed during the course of employment[11].  In the current case, even if the conduct did not occur in the workplace, it was committed at a party that was organized and planned during work hours through the company resources i.e. computers. This is similar to the decision made in STU vs JKL pty Ltd where the court held that, even if the conduct was held outside the workplace and during off-work hours, it was still sexual harassment within the employee’s course of employment since it occurred in accommodation that was provided by the employer.

 Under the vicarious liability principle, employers have a legal responsibility to ensure their workplace is free from any form of sexual harassment. therefore, they are held liable for sexual harassment offense committed by an employee on other employees in the workplace  unless they prove that they have taken all ‘reasonable actions’ to prevent sexual harassment in their workplace[12]. In the current case, sexual harassment conduct in question was committed by one employee (i.e. mark) toward another (Betty). As such the employer i.e. sandy would be held liable unless she proves that reasonable action was taken to prevent the sexual harassment. However, given the fact that when Sandy was informed of the potential sexual harassment of Betty, she did nothing to prevent it. In fact, her conduct including telling Betty to feel flattered that Mark had an interest in her’ promotes sexual harassment in the workplace. This is similar to the decision in Horne v Press Clough Joint Venture where the tribunal held that the employer was liable for sexual harassment committed toward the complainants as they failed to support them in having the pornographic content removed[13].

In conclusion, given that the three elements of sexual harassment have been met in this case and the conduct in question occurred within the course of employment,  and Sandy did nothing to stop it despite being informed by Betty,  a court is most likely to conclude that sexual harassment in the workplace was committed.