The Sex Discrimination Act 1975

Introduction

Since ancient times women are always considered the inferior sex. It is the mark of a progressive society to bridge the gap and to elevate the status of women in society. In the United Kingdom one of the best examples of progress in the area of gender relations is the ratification of a law in the latter part of the 20^th century and it was called the Sex Discrimination Act 1975. This law prohibits an employer to treat a person or a group of employees more favourably than others on the basis of gender.

It was created having women in mind because they usually suffer from discrimination. Employers would prefer to hire a male candidate than a female candidate for the same job position because if the woman gets pregnant then it would be costly for the company. The purpose of this study is to examine the effectiveness of the said law when it comes to discrimination on grounds of sex in the workplace. In addition this study will partially discuss another landmark law that will help reduce discrimination.

The Equality Act of 2010 gives the government more power to enforce equality laws.¹ This is a significant development because an investigation into labour statistics will show that the Discrimination Act 1975 has loopholes that employers can exploit. One example of how discrimination can continue is the proliferation of part-time employment for women. It is therefore important to ask the question: How successful was the Sex Discrimination Act 1975 in providing equality for women at work?

Sex Discrimination Law

The aforementioned law is supposed to be applicable to both men and women. However, it is understood that the law was ratified specifically to benefit women in the workplace. The law prohibits both indirect and direct discrimination as explained in the following statements:

1. Direct discrimination, which occurs when a person is treated less favourably on grounds of sex;
2. Indirect discrimination, takes place when a condition must be satisfied in order to obtain a job or promotion, but one sex can satisfy the condition more easily. The employer has to justify that condition is essential, otherwise indirect discrimination will be said to have taken place.²

With regards to the first major provision, it is unlawful to have a man and woman occupying the same position but the male employee has more benefits as compared to his female counterpart. With regards to the second provision it is illegal for employers to create a system of job conditions that will exclude females from applying and getting that particular position. Victimization is also covered in the said law.³

Victimization in this regard pertains to those who brought proceedings against an employer and as a result becomes the subject of discrimination. This protects those who are discriminated against and encourages them to step forward and complain against the way they were treated by their employers. Furthermore, this provision gives them protection from retaliation in whatever shape or form. The Equality Act of 2010 on the other hand is “An Act to make provision to require Ministers of the Crown and others when making strategic decisions about the exercise of their functions to have regard to the desirability of reducing socio-economic inequalities; to reform and harmonise equality law and restate the greater part of the enactment relating to discrimination and harassment related to personal characteristics…”⁴

One way to look this new development is the urgency of a more focused approach to solving inequality in the workplace. The message that comes across from a mere overview of this law is that the government wants everyone to know that inequality problems must be tackled as one. Sex discrimination is just part of the problem but it must be treated in the same level of importance as others and this new law makes it clearer what the government expects from employers. Another purpose of this new law is to provide employers and ministers the ability to understand the law in a more comprehensive light and thus easier for everyone to comply with it.

For example, instead of simply talking about equality and asking employers to be fair with their dealing regardless of gender of their employees, the law now requires employers to publish information about the differences in pay between male and female employees.⁵ It is therefore easier to monitor if employers are willing and able to comply with equality laws. This is a more proactive stance and would surely improve the way the government tackles equality problems and hopefully it will also have an impact on discrimination issues. This law is needed considering the fact that the Discrimination Act of 1975 was unable to significantly reduce the gap between male and female employment as will be discussed in the following pages.

Case Law

The following are some of the cases that are related to the Act. These cases show how the law can be applied to help deal with discrimination in the workplace with regards to gender. The first one in consideration is the Bilka-Kaufhaus G.m.b.H. v. Weber von Hartz (Case 170/84) [1987] I.C.R. 110.⁶ This case is about a complaint lodged by part-time workers who argued that they were paid a lower hourly rate as compared to full-time workers.

The judge ruled in their favour, and one of the most important feature of the case is that most of the part-time workers were women.⁷ Two years after the Act was ratified, there was another important case. Belinda Price sued the Civil Service because she was told that she could no longer apply for the job of an executive officer citing the age limit of 28 years old.⁸ At that time she was already 35 years old. Appealing to the principles embodied in the Act she argued that since women have to take a time off in order to rear children, it would be extremely difficult for them to comply with that condition.⁹

The tribunal ruled that this is an example of indirect discrimination because more women than men are affected by this rule. This is therefore discriminatory because men do not have to deal with problems related to pregnancy and therefore they have no problem with meeting the requirements of the Civil Service. But this does not mean that women are less qualified than their male counterparts and thus the tribunal ruled correctly in behalf of Belinda Price.

Labor Statistics

In Fig. 1 below, one can see the compilation of data coming from the Office for National Statistics. The data says that in 2008 more men were employed as compared to women. The same government also pointed out that although there had been a significant increase in the number of women who are employed it is also important to reveal that almost half of the women who are employed in the UK are working in part-time jobs.¹⁰

In addition the same agency asserted that for women the presence of a dependent child can greatly affect employment.¹¹ The data in Fig.2 is another revelation into the serious degree of inequality between men and women in the UK. For example, men are ten times more likely to be employed in skilled trades.¹² It is a significant difference because 19 percent of men are hired into skilled trades while there are only 2 percent of women who were employed in this field. Men are also more likely to be managers and senior officials as compared to female employees as seen in the graph below.

Effectiveness of the Law

The passage of the Sex Discrimination Act 1975 was considered a major breakthrough in the history of the United Kingdom. It is therefore one of the evidence that indeed the UK has become a very progressive and enlightened country because its citizens, especially its government has acknowledge that it is unjust and unlawful to treat men and women differently. However, there is a big difference between having a legal basis for complaining to a tribunal and the ability to win a case against an employer.

This is what was highlighted by commentators who said, “The courts and the law could be used to police discriminatory practice (albeit only if victims of discrimination or harassment could prove their case.”¹³ In 2001 the British government commissioned a team of experts to determine the state of women’s employment and the group fulfilled their duty by consulting the top management of the 100 of UK’s leading private and public sector and they found out that there is “…an 18 percent earnings gap between men and women in the UK.”¹⁴ The team leader, Denise Kingsmill summarised their findings by saying, “The Report highlights the demand for better human capital management in the UK.”¹⁵

This is not only the only disturbing data when it comes to equality in the labour market. According to another report after the passage of the Act, part-time employment began to rapidly expand.¹⁶ For instance, in 1951 the census bureau reported that there were only 750,000 women who are under part-time employment but in in 1984 the figure rose significantly because during that year it was reported that there were 4, 117, 000 women who were employed part-time.¹⁷

This meant that in that year 46.4 percent of all women were under part-time employment.¹⁸ The reason for the increase in the number of part-time employees can be blamed on the British government because it gave incentive to employers, giving them exemption from the employer contribution of the National Insurance contributions if they employ low-paid part-timers.¹⁹ The reason why women work part-time is that they are trying to minimize the conflict between life and work.²⁰

However, it is also widely understood that once a woman is in part-time employment then her career development is negatively affected.²¹ This is main reason why it is not only important to look at the fact that women are employed, it is also imperative to find out how they are employed if they are given the chance to improve their lives by having the chance to apply and be accepted in higher paying job or at least in full-time jobs. These findings together with the labour statistics given previously will give the idea that although the Act has significantly altered the economic and labour landscape of the UK, there is still much work to be done.

Continued Discrimination?

If the government, the private and public sector organisations are serious in their goal to lessen the earnings gap as well as employment opportunities between men and women then there is a need to end discrimination. There seems to be legal loophole that employers are trying to exploit when it comes to gender discrimination in the workplace. This was pointed out by more than a few commentators and they said, “The concentration of women in organisations dominated by part-time low-paid work significantly curtails the effectiveness of the legislation which provides equal pay for work of equal value, as the law is only at present allowed to be applied within a workplace where there are relevant male comparators employed.”²²

There must be what legal experts call as the “comparable man.”²³ Since there are few men in that area of employment then the law cannot be used to complain against indiscrimination. The hands of the law are tied so to speak because there is no basis for saying that there is discrimination. How can there be discrimination if all the women in a particular company received the same wages and the same benefits? The only problem is the loophole in the law because men have the capability and the opportunity to work in full-time employment while there are businesses that benefit from having part-time employers in their payroll and at the same they do not have problems attracting female workers into these kinds of jobs.

But there is very limited growth opportunity in this type of working environment. Part-time work usually means unskilled labour and therefore there is very little chance of getting promoted to a higher position that will provide a more steady income or simply higher pay.²⁴ This is one of the reasons why inequality persists in the UK. This is some kind of an indirect discrimination because someone has created a system wherein women have no other choice but to choose low-paying jobs.

The employer cannot be punished for exploiting the loophole but the government can look into it and make some adjustments on how to help women to be employed full-time or in some other jobs that will not be a dead-end and promises tremendous potential. In other words something has to be done when it comes to the high number of part-time female workers and if the government can create laws that allow them to become full-time earners then that could be a good start.

Conclusion

The Sex Discrimination Act 1975 is without a doubt was a landmark law in the history of the United Kingdom. By ratifying this law the government has made a statement that the UK is indeed a progressive society and willing to embrace the idea of equality especially when it comes to gender issues in the workplace. This has given ordinary people the capability to make a stand against direct and indirect discrimination.

Even victimization as a result of making a complaint against unlawful practice is a major boost when it comes to the fight against discrimination. However, there are two areas in employment that casts serious doubt as to the real effectiveness of the Act. The first major indicator of problems is the fact that after 1975 more and more women are being driven to work part-time. There are numerous problems when it comes to this issue because when women accepted the idea that part-time work is enough for them then they throw away their opportunity to have a better paying jobs, not to mention access to a better life.

The second major concern is the fact that more men occupy positions of leadership and more men are employed as skilled workers as compared to women. This is a breeding ground for a number of inequalities because the government will only be able to enforce the law against discrimination if it can be proven that women are discriminated upon based on the presence of other men that can be compared against them. But if there are only women in that particular workplace then the employer will be able to continually give them low-pay because there is no way to find out that the company is exploiting them just because of their gender.

In other words there are loopholes in the said Act. There are government policies that has to be looked into because it is possible that there are policies that encourage this kind of business practices. If discrimination should be totally eradicated then the government will have to start reviewing policies that hurt women’s opportunities to get a better job. Although the Sex Discrimination Act 1975 is a ground breaking development when it comes to how the British government see the need for equality in the workplace there is not enough evidence to show that indeed equality has been achieved. This is especially true when it comes to the treatment of women in the workplace.

Almost half of the population of working women are into part-time employment. In addition there are only a few opportunities open for women who wanted to be on top of their profession. Women are often times discriminated against because they get pregnant and that they need time to take-care of their babies. But if the British government will not increase its efforts to solve this problem then more and more women will be trapped in poverty because they do not have the means to increase their earning capability since most of them are into part-time work. There are so many things that has to be done. The passage of the Equality Act of 2010 may be a promising development when it comes to giving more power to the government to help reduce discrimination and the gap that existed between working men and working women.

Bibliography

Barnes, J et al., Society, politics and the economy, Nelson Thornes Ltd, Cheltenham, 2003.

Barnett, H, Constitutional and administrative law, Cavendish Publishing Ltd., London, 2004.

Bar-Niv, Z et al., International labour law reports, Vol. 18, Martinus Nijhoff Publishers, Dordecht, Netherlands, 2000.

Briar, C, Working for women: gendered work and welfare policies in twentieth century britain, UCL Press, Ltd., London. 1997.

Epp, C, The rights revolution, University of Chicago Ltd., London, 1998.

Great Britain. The Equality Act 2010, The Stationery Office, London, 2010.

Niessen, J & I Chopin, The development of legal instruments to combat racism in a diverse europe, Martinus Nijhoff Publishers, Leiden, 2004.

Office for National Statistics. Working lives: employment rates higher for men, Office for National Statistics, 2011. Web.

Phillips, R & J Furlong, Education, reform,and the state: twenty five years of politics, policy, and practice, RoutledgeFalmer, London, 2001.

Scott, J et al., Women and employment: changing lives and new challenges. Edward Elgar Publishing Ltd., Cheltenham, 2008.

Wittenberg-Cox, A & A Maitland, Why women mean business: understanding the emergence of our next economic revolution. UK: John Wiley & Sons, London, 2009.

Footnotes

1. Office for National Statistics. Working lives: employment rates higher for men, Office for National Statistics, 2011. Web.
2. Barnes, J et al., Society, politics and the economy, Nelson Thornes Ltd, Cheltenham, 2003, p.3.
3. ibid.
4. Great Britain. The Equality Act 2010, The Stationery Office, London, 2010, p.1.
5. ibid.
6. Bar-Niv, Z et al., International labour law reports, Vol. 18, Martinus Nijhoff Publishers, Dordecht, Netherlands, 2000.
7. Niessen, J & I Chopin, The development of legal instruments to combat racism in a diverse europe, Martinus Nijhoff Publishers, Leiden, 2004.
8. Wittenberg-Cox, A & A Maitland, Why women mean business: understanding the emergence of our next economic revolution. UK: John Wiley & Sons, London, 2009.
9. ibid.
10. Office for National Statistics. Working lives: employment rates higher for men, Officefor National Statistics, 2011. Web.
11. ibid.
12. ibid.
13. Phillips, R & J Furlong, Education, reform,and the state: twenty five years of politics, policy, and practice, RoutledgeFalmer, London, 2001, p.208.
14. Barnes, loc. cit.
15. ibid.
16. Briar, C, Working for women: gendered work and welfare policies in twentieth century britain, UCL Press, Ltd., London. 1997, p.91.
17. ibid.
18. ibid.
19. ibid.
20. Scott, J et al., Women and employment: changing lives and new challenges. Edward Elgar Publishing Ltd., Cheltenham, 2008, p.303.
21. ibid.
22. ibid.
23. Barnett, H, Constitutional and administrative law, Cavendish Publishing Ltd., London, 2004, p.555.
24. Epp, C, The rights revolution, University of Chicago Ltd., London, 1998.