Sexual Orientation and Gender Discrimination at the workplace

Sex (or Gender) Discrimination at the workplace

Sex or gender discrimination in the workplace may come in different forms, but typically means that a person is treated differently or less favorably on the basis of their gender, gender identity or sexual orientation, whether applying for a job or as a current employee.

Unlawful discrimination based on a person’s sex or gender may occur when:

• Not being hired, getting a lower salary, being denied a promotion or training opportunity because of their gender, gender identity or sexual orientation
• Being held to different or higher standards, or being judged more severely because of their gender identity, or for not behaving or presenting themselves in a way that consistent with traditional ideas about femininity or masculinity
• Being subject to unwelcome sexual advances or requests for sexual favors
• Being insulted or called by derogatory names
• Being rejected for a job, forced leave or reduced responsibilities because the person is pregnant.

What is the position at law?

A summary of the various legislative instruments that deal with these issues is provided hereunder.

The Employment and Industrial Relations Act (Chapter 452 of the laws of Malta) prohibits any form of discriminatory treatment at all stages. Discriminatory treatment includes any distinction, exclusion or restriction which is not justifiable in a democratic society including discrimination made on the basis of marital status, pregnancy or potential pregnancy, sex, colour, disability, religious conviction, political opinion or membership in a trade union or in anemployers’ association.

The Equal Treatment in Employment Regulations (Subsidiary Legislation 452.95) complements the aforementioned by laying down minimum requirements to combat discriminatory treatment on the grounds of amongst others of sex and/or sexual orientation. The said regulations apply to all persons in relation to:

• conditions for access to employment, including the advertising of opportunities for employment, selection criteria and recruitment conditions, whatever the branch of activity and at all levels of the professional hierarchy, including promotions;

• access to all types and to all levels of vocational guidance, vocational training, advanced vocational training and retraining, including practical work experience;

• employment and conditions of employment, including remuneration and dismissals; and

• membership of, and involvement in, any organization of employees and employers, or any organization whose members carry on a particular profession, including the benefits provided for by such organizations.

In terms of the Equal Treatment in Employment Regulations (Subsidiary Legislation 452.95), discriminatory treatment on the basis of sex and/or sexual orientation includes:

• harassment and sexual harassment, as well as any less favorable treatment based on a person’s rejection of or submission to such conduct;

• instruction to discriminate against persons on grounds of sex;

• any less favorable treatment of a woman related to pregnancy or maternity leave

• in so far as the ground of sex is concerned, any less favorable treatment of a person who underwent or is undergoing gender reassignment (where a person is considering or intends to undergo, or is undergoing or has undergone, a process , or a part of a process for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex).

The Regulations prohibits discriminatory treatment whether carried out directly or indirectly on the grounds of sex, including gender reassignment and to pregnancy or maternity leave, sexual orientation, which may occur where:

• a person is treated less favourably than another is, has been, or would be, treated in a comparable situation;

• an apparently neutral provision, criterion or practice would put persons of a particular, sex, or sexual orientation at a disadvantage when compared with other persons, without any objective, legitimate and proportionate justification;

Employers should also be aware of other legislative measures that seek to promote and safeguard equality in respect to gender, namely the Equality for Men and Women Act (Chapter 456 of the laws of Malta). Under the said Act, employers that manage the work, give promotions, distribute tasks, offer training opportunities or otherwise arrange theworking  conditions  in  a  manner  that  employees  areassigned a less favourable status than others on the basis of sex or because of family responsibilities shall be deemed to have discriminated against that person.

Diversity and dignity are two fundamental principles which an employer should embrace as a basis of its business and its relationships, especially in relation to its employees. Employers also be deemed to have discriminated against a person if they instruct any person to discriminate against another person or neglect their obligation to supress any form of harassment at their workplace.

An employer should strive towards having and maintaining a working environment that is free of any discrimination, intimidation, bullying or any form of harassment, which the employer should not tolerate or condone in any way. In this spirit, an employer should seek to implement and enforce all applicable laws granting protection to its employees against discrimination and harassment in any form in access to employment, vocational training and promotion.

What should you do if you think you have been discriminated?

Please speak to us in confidence if you think that you have been discriminated or harassed.  We will help you understand your rights. 

However, please act swiftly as you only have four (4) months from the date of the alleged breach to file a claim.

How can we help employers?

Among our services, we assist employers in preventing sex discrimination in the workplace by writing or advising on the implementation of equality and diversity policies, as well as training managers in the law governing sexual discrimination in the workplace.

Furthermore, we can advise or assist in conducting the necessary investigations of such claims as well as assistance with grievance or disciplinary procedures.  Where things cannot be settled amicably through the drafting and execution of settlement agreements, we can also represent employers at an Industrial Tribunal.

For further information, please do not hesitate to get in touch with us.