Friday, 17 May 2024

Is asking female colleagues to “get the coffees” discriminatory?

Recent reform in discrimination law emphasises organisations and businesses’ positive duty to eliminate workplace gender discrimination, sexual harassment, hostile working environments, and victimisation. Specifically, the Sex Discrimination Act 1984 (Cth) (SDA), provides that it is unlawful to treat someone unfairly based on their sex or gender identity. It is hence crucial for employers to proactively prevent, identify and manage conduct at the workplace that may amount to sex discrimination or harassment.

The Fair Work Commission (FWC) recently considered whether requesting a female employee to “get the coffees” was discriminatory in the matter of Shivaani Polley v WSP Australia Pty Ltd [2024]. The FWC pointed to the possibility of discrimination when asking employees to perform gender-based tasks, however, it is also necessary to consider the context and reason for the request.

The Case

Ms Shivaani Polley was a senior engineer for WSP. During a client workshop, she was asked by another male colleague, Mr Scott Benjamin to “get the coffees”. Ms Polley was the only woman and the second-most senior person among the nine attendees. She felt “intensely embarrassed” and found the request publicly humiliating. She recalled an example in the sex-based harassment training concerning asking women to do gender-related tasks, such as getting food or cleaning up constituting sexual harassment.

Ms Polley made a complaint to WSP’s HR department, however, the investigation concluded that Mr Benjamin’s request was not an incident of “gender-based discrimination”. The FWC agreed based on the evidence that the colleague only asked the applicant because she was not required to present during the workshop. Mr Benjamin also considered asking another non-participating male colleague, but when that colleague chose to join the workshop online, the request was made to Ms Polley.

The FWC concluded that Mr Benjamin did not ask Ms Polley to “get the coffees” because of her gender. Ms Polley was unaware of the context of why he was asking her. Accordingly, Mr Benjamin’s request did not amount to gender-based discrimination.

Workplace Gender-Based Discrimination and the SDA

While the request in Ms Polley’s case was not considered discriminatory in light of the context, it is a timely reminder for employers that requests or instructions relating to gender-based tasks can constitute discrimination.

Direct discrimination

Section 5(1) of the SDA provides that direct sex discrimination occurs when a person, by reason of the sex of another person, or characteristics that are generally imputed or appertain to their sex, treats the aggrieved person less favourably. For example, if a female employee is directed to perform tasks, such as cleaning up or getting food beyond her usual role because of her gender, it could be considered direct discrimination.

The Federal Magistrates Court (now the Federal Circuit and Family Court of Australia) also previously found an employer asking a female employee to change the towels in the men’s washroom to be direct sex discrimination.[1] The request had been made because it was a job that needed doing and it was a job that had always been done by “one of the girls”. The Court considered that the male employees in the workplace would not be asked to undertake this menial task. The employer’s conduct was in breach of the SDA, and damages were awarded accordingly.

Indirect discrimination

Indirect sex discrimination occurs if a requirement or practice in the workplace applies to everyone but disproportionately affects people based on their sex.  Despite being less visible, indirect discrimination is equally harmful. Common scenarios of workplace indirect sex discrimination could be strict dress codes and policies that prohibit workers from taking short breaks at specific times which unfairly disadvantage an individual due to their sex or gender identity.

Sex-based harassment

Sex-based harassment is defined as unwelcome conduct of a seriously demeaning nature by reason of the person’s sex in circumstances in which a reasonable person would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated. An example of sex-based harassment could include requesting a person to engage in degrading conduct based on their sex, as well as making inappropriate comments and jokes to a person based on their sex.

Sex-based harassment in the workplace is also unlawful under the SDA.

Key Takeaways for Employers

Requests and instructions made based on an employee’s gender or which disproportionately affect employees of a particular gender group can amount to gender-based discrimination or sex-based harassment. This is especially the case when the request is for performing a gender-based task that does not fall within the usual duty of the employee.

Employers bear the responsibility to take proactive steps to create a safe workplace culture and eliminate workplace-related sex discrimination and harassment. Otherwise, they are exposed to the risk of being held vicariously liable for unlawful conduct by their employees.

For tailored advice, training and support for workplace discrimination laws and the responsibilities of employers, please consult HR Legal. Our lawyers are here to guide employers through the evolving changes in the workplace.

HR Legal also offers Respect@Work specific training to support organisations to meet its obligations to eliminate sexual harassment, sex discrimination and other unlawful behaviours, consistent with the Australian Human Rights Commission’s guidelines, which can be viewed here.


This article was produced by HR Legal. It is intended to provide general information only in summary format on legal issues. It does not constitute legal advice, and should not be relied on as such.

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