Under the Gender Equality Law, 2011, a person discriminates against another person by any distinction, exclusion or preference that has the intent or effect of putting a person or group at a disadvantage of opportunity in their employment or occupation. Any act, practice or policy that directly or indirectly results in discrimination against a person is an act of discrimination regardless of whether or not the person intended to discriminate.
Discrimination on the grounds of sex, gender, marital status or pregnancy refers to an adverse action or making a distinction in favour of or against a person that would not have ocurred had the person been of a different sex, marital status or pregnant state or displayed different gender characteristics.
Discrimination can be direct or indirect, but it always has the effect of denying individuals equal opportunities and rights on the basis of personal characteristics.
Direct discrimination occur when Person A applies to Person B a particular act, practice or policy that is not applied to people who are the opposite sex of Person B.
For example, direct discrimination would occur if during interviews, female applicants are asked about their family or pregnancy plans but males are never asked questions of this nature; or male victims of domestic violence are denied access to protection or given different treatment than female victims of domestic violence.
Indirect discrimination occurs as follows:
- Person A applies to Person B an act, practice or policy,
- Person A applies (or would apply) that act, practice or policy to persons not of the same sex as B,
- This act, practice or policy puts or would put Person B at a particular disadvantage,
- Person A cannot justify the relevance of the act, practice or policy by showing that it has a proportionate means of achieving a legitimate aim
For example, a company policy in a highly male dominated profession states that employees are prohibited from taking their 15 minute break after 2:00pm. The company's policy unknowingly discriminates against their female employees who are nursing and need to express milk for their babies in the afternoon.
It is also important to consider structural discrimination in the context of gender issues. This type of discrimination occurs when our society's major 'structures' - such as the family, government, labour market, education system, etc - consistently disadvantage a particular group through norms, policies and behaviour. Our society may not intend to discriminate in this way, but when the outcomes for males or females are unjust there is structural discrimination that is separate from, but may be related to, any direct or indirect discrimination in which individuals or groups may engage.
For example, banks base their lending decisions on factors such as income, length of time in a job and other expenses and debts. We know that females are more likely than males to be outside of the labour force and that those who are working in the paid economy earn less than men on average and are more likely to take career breaks. Women also tend to be the primary caretakers for children, increasing their family expenses, and single-female headed households are less financially secure than single-male headed households or two-person households. Due to these factors, banks are less likely to lend to females than to males. While banks are private institutions that give loans based on risk, there are negative effects on females and for society as a whole when females do not have equal access to credit.
The distinction between these types of discrimination is important because if we want to promote gender equality we need to understand what types of discrimination are occurring in different areas of society. There are also important implications for policies and activities to prevent discrimination. For example, the Gender Equality Law, 2011 seeks to eliminate direct and indirect discrimination in employment, training, recruitment and related matters on the basis of sex, marital status, pregnancy and gender. It promotes equality in the workplace by prohibiting certain acts, practices and policies that are discriminatory. Structural discrimination, however, is related more to our culture, how we value boys and girls and men and women, what kind of relationships we have and how we organise our society. Education is one of the most important tools for ending structural discrimination by breaking stereotypes and prejudices.
