Not all sex discrimination is blatant.
Indirect sex discrimination occurs when an employer imposes requirements, conditions or practices that have a disproportionate adverse impact on one sex compared with another.
For example:
- When the percentage of one sex that could meet the job criteria is considerably smaller than the other sex
- The employer can’t justify the criteria as a genuine occupational requirement (such as an actor playing a certain role, or women working in an all-female hostel)
If you have lost out because you can’t comply, you may have a claim for indirect sex discrimination. If so, we can help with that.
But would you recognise indirect sex discrimination if you saw or experienced it?
It’s not always as clear-cut as you might think.
See if you’re right, by considering the two cases below.
What you wear
1A. Nicola Thorp was a temporary receptionist at PwC, and was sent home for refusing to wear high heels.
Was she discriminated against?
The answer is yes. She was treated differently than a man would have been, which counts as indirect sex discrimination.
1B. High heels are part of the ‘uniform’ for women working at PwC. Nicola was sent home for turning up in flat shoes.
Was she discriminated against?
Probably. PwC might be able to win their case if they can prove Nicola refused to wear the prescribed uniform. However, she could argue that high heels cause discomfort to women, putting them at a disadvantage – which is discriminatory.
Your physical attributes
2A. The Police impose a minimum height requirement of 1.7m to enrol in their schools.
Is that discrimination?
The answer is yes. Most women are less than 6′ tall, which puts them at a disadvantage.
2B. The Police impose a minimum height requirement of 1.7m to enrol in their schools, because they have to protect people and property, arrest offenders and keep them in custody, and conduct crime prevention patrols that might require the use of physical force.
Is that discrimination?
If the employer can prove the height requirement is justified – and there is no other way to achieve it – it may not be discrimination.
However, in the case of Ypourgos Esoterikon and Anor v Kalliri, the European Court of Justice held that the requirement does constitute indirect sex discrimination.
This decision was reached for four reasons:
- The ability to carry out the listed tasks is not height-dependent
- Significant physical force is not required for other police roles, such as traffic control or providing assistance to citizens
- Until 2003, Greek law required different minimum heights to enter the police. Men needed to be at least 1.7m, while women the minimum height was 1.65m.
- There are different requirements for men and women to enter the Greek armed forces, port police and coast guard, where the minimum requirement for women is only 1.6m.
These are just a couple of examples. If you feel that you have been treated in a way that other groups would not be, you may have a case.
Need help?
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