Genuine occupational qualifications
27 Genuine occupational qualifications
Nothing in section 11(1)(a) or (b), 12(1)(a) or (b) or 13(b) renders it unlawful for a person to discriminate against another person, on the ground of the other person’s sex, in connection with a position as an employee, contract worker or commission agent, being a position in relation to which it is a genuine occupational qualification to be a person of the opposite sex to the sex of the other person.
Without limiting the generality of subsection (1), it is a genuine occupational qualification, in relation to a particular position, to be a person of a particular sex (in this subsection referred to as the relevant sex) if —
the duties of the position can be performed only by a person having particular physical attributes (other than attributes of strength or stamina) that are not possessed by persons of the opposite sex to the relevant sex; or
the duties of the position involve performing in a dramatic performance or other entertainment in a role that, for reasons of authenticity, aesthetics or tradition, is required to be performed by a person of the relevant sex; or
the duties of the position need to be performed by a person of the relevant sex to preserve decency or privacy because they involve the fitting of clothing for persons of that sex; or
the duties of the position include the conduct of searches of the clothing or bodies of persons of the relevant sex; or
the occupant of the position is required to enter a lavatory ordinarily used by persons of the relevant sex while the lavatory is in use by persons of that sex; or
the occupant of the position is required to live on premises provided by the employer or principal of the occupant of the position and —
the premises are not equipped with separate sleeping accommodation and sanitary facilities for persons of each sex; and
the premises are already occupied by a person or persons of the relevant sex and are not occupied by any person of the opposite sex to the relevant sex; and
it is not reasonable to expect the employer or principal to provide separate sleeping accommodation and sanitary facilities for persons of each sex;
or
the occupant of the position is required to enter areas ordinarily used only by persons of the relevant sex while those persons are in a state of undress; or
the position is declared, by regulations made for the purposes of this paragraph, to be a position in relation to which it is a genuine occupational qualification to be a person of a particular sex.
This section does not apply in relation to a person at a time when the employer or principal concerned already has employees, commission agents or contract workers of the opposite sex to the person —
who are capable of carrying out the duties of the position concerned; and
whom it would be reasonable to employ, engage or allow to work on the duties referred to in paragraph (a); and
whose numbers are sufficient to meet the likely requirements of that employer or principal in respect of the duties referred to in paragraph (a).
[Section 27 amended: No. 74 of 1992 s. 10; No. 57 of 1997 s. 55(1).]
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