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Last Updated: 23 September 2011
In Patricia Easteal (ed), Women and the Law in Australia, LexisNexis Butterworths, Sydney, 2010, Ch 8, pp 131-51 (pre-publication version)
WOMEN AND DISCRIMINATION LAW[*]
Margaret Thornton
Professor of Law
Australian National
University
Canberra
margaret.thornton@anu.edu.au
Introduction
The division between public and private life that has
been historically etched onto the bodies of men and women lies at the heart
of
women’s struggle for
equality.[1] As Patricia
Easteal makes clear in Chapter 1, this division has been normalised through the
assignation of women to caring and unpaid
work in the home, leaving men free to
dominate public affairs and the world of paid work. This chapter will examine
the efficacy
of sex discrimination legislation as a mechanism for breaking down
stereotypical assumptions in the
workplace,[2]
particularly the notion that the ideal worker is unencumbered and committed to a
full-time career.[3]
In the course of the evaluation, I will elaborate on the main conceptual,
substantive and procedural problems posed by the legislation
in order to
highlight the difficulties for complainants. I will focus on the Sex
Discrimination Act 1984 (Cth) (SDA) as it has national application, but I
will also make reference to distinctive aspects of State and territory
legislation;[4] a
thoroughgoing analysis of the nine jurisdictions that presently proscribe sex
discrimination in Australia is beyond the scope of
this
chapter.[5]
Endorsing the Status Quo
The objects of the SDA are ambitious,
promoting the principle of equality between men and women and specifying the
elimination of discrimination in certain
areas.[6] However, there
is a significant gap between the rhetoric and the reality as the legislation
continues to uphold the problematic division
between public and private life. As
legal regulation is largely confined to the public sphere, a truly radical
approach would be
required to address properly the inequities of the private
sphere. Even then, the legislation does not apply to the public sphere
as a
whole but is restricted to certain specified areas of public and quasi-public
life, such as employment, education, accommodation,
access to goods and
services, and clubs, with minor variations between jurisdictions. Nevertheless,
the dividing line between public
and private is not rigid. The inclusion of
grounds, such as the proscription of discrimination against workers with family
responsibilities,[7]
provides evidence of the dynamic nature of gender relations.
When we move
beyond the rhetorical aims, it can be seen that the philosophy underpinning the
legislation is one of formal equality,
which involves treating like cases alike
– regardless of sex or other characteristic. Thus, when Mary applies for a
managerial
position with XYZ P/L, a multinational company, she has to be judged
on her merits according to the selection criteria in the same
way as John and
other male applicants. She cannot be rejected at the outset because of
stereotypical assumptions about women in positions
of authority, and she cannot
be interrogated about whether she intends to have children, her method of
contraception or her child
care arrangements – unless the same questions
are asked of male applicants.
Substantive equality is directed towards
achieving equitable outcomes for an entire class. Thus, XYZ could take on board
the under-representation
of women in management by developing strategies to
change the gender profile of the organisation, such as identifying talented
women,
creating opportunities and providing leadership
programs.[8] Such
measures represent a ‘soft’ form of affirmative or positive action,
which does not conflict with the norms of anti-discrimination
legislation.
‘Hard’ forms, such as quotas, could lead to a complaint of
discrimination if a man missed out on a benefit
because of a perception that
women were being treated more
favourably.[9]
Australian anti-discrimination legislation makes scant provision for
proactive initiatives, apart from ‘special measures’
in certain
circumstances, such as pregnancy or
childbirth.[10] The
underlying assumption is one of strict equal
treatment.[11] This is
despite the fact that the UN Convention on the Elimination of all Forms of
Discrimination against Women, on which the SDA
is based, is sex-specific, while
the SDA itself, like other Australian anti-discrimination legislation, is
sex-neutral, that is,
it applies equally to men and women. Such contradictions
point to the fact that the legislation consists of an amalgam of both radical
and conservative provisions, which reflects its contentious
history.[12] These
contradictions contribute to the contested character of discrimination.
The
legislation is designed to provide a course of action and a remedy for an
aggrieved individual (the complainant) rather than punishment
of the perpetrator
(the respondent). The significance of the individualised focus is that the
emphasis inevitably tends to be on
the tip of Easteal’s iceberg: that is,
complaints that are overt and close to the
surface.[13] For
example, if Bloggs, the CEO of XYZ, tells Mary that she was the ‘best
qualified but the wrong sex’, we would assume
that she had been treated
less favourably than John, the successful applicant. If Bloggs did not make such
a crass comment but proceeded
to reject Mary anyway, it would be difficult for
her to prove discrimination, however outstanding her qualifications, for an
employer
is all too often able to proffer a seemingly rational
non-discriminatory explanation for its conduct. Thus, while claiming to have
appointed John ‘on merit’, XYZ would probably assert that some
aspect of Mary’s qualifications – or experience
– or
management style – was wanting. Even if Mary suspects that the reason
given was pretextual, she will be unable to
disentangle the discriminatory
conduct from the social prejudice against women in positions of authority and
prove that she was treated less favourably than John because of her sex.
The systemic discrimination that lies deep within the social psyche
remains
resistant to exposure and remediation under individual complaint-based
discrimination legislation.
Despite the problems of form and substance that
inhere within the legislative framework, including the numerous exceptions and
qualifications
that evince deference to vested interests, the hope is that the
legislation will ultimately effect a modicum of substantive social
change by
virtue of the cumulative effect of the resolution of myriad individual
complaints. The fact that thousands of complaints
are lodged annually, and show
no signs of
abating,[14] suggests
that the aspiration may be unrealisable. Anyone proposing to have recourse to
the legislation needs to be realistic about
what is achievable.
|
Total Sex Discrimination Complaints
2007–08[15]
(including breastfeeding, pregnancy, carer or parental
status, sexual harassment and family responsibilities)
|
||
|
|
Complaints
received |
% of
total complaints |
|
CTH
|
857
|
100.0
|
|
NSW
|
288
|
25.2
|
|
VIC
|
612
|
28.2
|
|
QLD
|
296
|
44.1
|
|
SA
|
85
|
29.6
|
|
WA
|
149
|
27.3
|
|
TAS
|
240
|
21.2
|
|
ACT
|
35
|
21.0
|
|
NT
|
44
|
21.6
|
Threshold Issues
(i) Lodgement of Complaints
The
SDA operates concurrently with State and territory legislation, which means that
Mary is free to choose under which Act to lodge
her complaint. An agency such as
the Australian Human Rights Commission (AHRC) will then attempt conciliation. If
unsuccessful, Mary
may proceed to a formal hearing before a tribunal or court.
She will then carry the burden of proof and possibly face the legal costs
of
XYZ, as well as her own, if unable to make out her case successfully. This
possibility represents a powerful incentive to agree
to a settlement at the
conciliation stage.
I stress that barely two per cent of all complaints
proceed beyond conciliation to a formal hearing. However, our understanding of
discrimination law and practice derives almost entirely from that small
proportion of decisions because they are determined in public
and the written
judgments are reported. In contrast, conciliation is largely a confidential and
opaque process (See Ch 2). It might also be noted that neither causation
nor any other issue has to be formally proved at the conciliation stage.
(ii) Direct discrimination
The alleged discrimination must
arise from a proscribed ground and complainant and respondent need to be
connected by an unbroken
linear thread; that is, the discriminatory conduct must
be shown to have been caused by the respondent. Direct discrimination
focuses on the tip of the iceberg and conduct that is overt, such as the comment
by Bloggs
that Mary was the ‘wrong sex’. Comparability is the
essence of direct discrimination in all jurisdictions except the
ACT, where the
focus is on treatment that is unfavourable or effects
disadvantage.[16]
Comparability requires a complainant to demonstrate that she was treated less
favourably than another in the same or similar circumstances.
Issues such as the
feminised character of precarious
work,[17] and the
dearth of women in
management,[18]
complicate the comparability requirement. This has become more contentious since
Purvis,[19]
a disability case decided by the High Court.
In Purvis, a majority
of the High Court conceptualised the appropriate comparator as a secondary
student without a disability who engaged in
the same conduct as a complainant
with the
disability.[20]
Discrimination could be established only if the hypothetical comparator had been
similarly disruptive in the classroom but was not
suspended. The narrow
conceptualisation of the comparator apropos Purvis, who is now expected
to evince the same characteristics as the complainant, has significant
ramifications for direct discrimination complaints
generally.[21]
Mary would have to establish that she was treated less favourably than John
but, apropos Purvis, she would not necessarily succeed. In the case of a
senior position, an applicant’s qualifications and experience need to
be
evaluated in light of the organisational
culture;[22] the
criteria do not speak for themselves. There is inevitably going to be deference
towards the views of XYZ, which might choose
to emphasise one criterion, such as
overseas experience, to argue that Mary was less meritorious than John. The
chances of success
for a complainant at the recruitment level are also reduced
because the respondent inevitably has a monopoly over the evidence.
In
proving her case, Mary has to show on the balance of probabilities that XYZ
caused the harm. However, it is notable that the normal
civil standard has been
subtly elevated in discrimination complaints because of the moral odium
associated with naming someone ‘a
discriminator’.[23]
The standard of ‘reasonable satisfaction’, developed by Dixon J in
Briginshaw v
Briginshaw,[24]
is often
cited.[25] Indeed, de
Plevitz argues that the Briginshaw standard has become the accepted test
in the anti-discrimination
jurisdiction.[26]
There are numerous reported decisions in which a complainant has been unable to
discharge the burden of proving that the alleged
discrimination arose from a
proscribed ground. Instead, some other seemingly rational explanation, such as
the personality failings
of the
complainant[27] or
‘organisational change’ is
accepted.[28] The
burden of proof is heightened by the inequality of bargaining power between
Mary, an individual, and XYZ, a powerful corporate
respondent.
(iii) Indirect Discrimination
If overseas
experience was a specified selection criterion, Mary might be better off
conceptualising her complaint as a manifestation
of indirect discrimination.
This form of discrimination takes a halting step towards addressing systemic
discrimination by considering
practices that are neutral on their face but
exercise a disparate effect by virtue of sex or other characteristic. Mary, like
many
other women in the company, has not had overseas experience as social norms
expected her to follow her male partner and accept positions
close to the family
home.[29]
While
indirect discrimination purports to recognise that men and women are rarely
similarly situated because of their different life
experiences, the complainant
and respondent must still be linked to the impugned practice, but proving the
nexus is not easy. Most
legislation includes a complex four-part test, although
the SDA now incorporates a somewhat simpler
test.[30] Mary would
be required to show that there was a requirement or condition with which she was
expected to comply, which disadvantaged
her by virtue of her sex and which was
not reasonable. Reasonableness remains the key element, although the burden of
proof shifts
to the
respondent,[31] which
is not the case with most State legislation.
It would seem to be relatively
uncontentious that the requirement or condition that Mary had to satisfy was to
have had an overseas
posting, either with XYZ or some other company, although a
threshold question is whether an overseas posting was an absolute requirement
or
not.[32] The SDA has
dispensed with the complex test of measuring the impact of the requirement or
condition on the complainant’s sex
by proving that proportionately more
men than women could comply with
it.[33] Even if this
element had to be proved, it would probably not be difficult to show that a
substantially higher proportion of men could
comply,[34] although
this would depend on the numbers of complying men and complying women in
relation to the total pools. In undertaking the
computation, care has to be
taken not to perpetuate discrimination against women in light of their historic
exclusion from senior
management
positions.[35]
While the concept of disadvantage, which has replaced proportionality in the
SDA, is not defined, a court could draw on the notion
of disproportionality
without becoming enmeshed in statistical complexities. It might take judicial
notice of the fact that men find
it easier to accept overseas postings than
women generally. Also of relevance to the picture being constructed would be the
fact
that women comprise only 10.7 per cent of executive managers in
Australia.[36] If the
evidence revealed that only those women without family responsibilities were at
the managerial level in XYZ in contradistinction
to the experience of male
managers, the issue of disadvantage would be confirmed.
The key question on
which Mary’s case would turn would be whether the requirement or condition
of having held an overseas posting
is reasonable or not. The slippery
subjectivity of reasonableness is a vexed one and many complainants falter on
this part of the
test.[38] Despite the
reversal of the burden of proof, employer prerogative enables the respondent to
reframe and constrain what constitutes
discrimination.[39]
Even if criteria to help determine reasonableness are included in the
legislation, they must still be evaluated in light of organisational
norms. The
SDA refers to the nature of the disadvantage, the feasibility of mitigating it
and the proportionality of the
disadvantage.[40] If
the requirement is non-negotiable, the disadvantage is devastating. However, as
reasonableness is a question of fact, all circumstances
need to be weighed up,
including cost, the respondent’s financial circumstances and available
alternatives.[41]
XYZ would undoubtedly argue that overseas experience was essential for a
senior managerial position with a multinational company.
The question is whether
there are alternatives or not. Could the training be done on-line or through
simulations? Reasonableness
is not just a question of convenience for the
respondent,[42] but
the standard is not particularly
stringent.[43] The
higher burden of proof attaching to complainants does not seem to carry over to
the reversal of proof of an evidentiary burden.
This means that, despite the
specification of criteria for reasonableness, corporate power and administrative
convenience continue
to be
privileged.[44]
Generalist courts, including the High Court, have tended to adopt a more
deferential stance towards respondents in discrimination
cases, which does not
augur well for women seeking to rely on indirect
discrimination.[45]
Grounds of Discrimination
(i) Sex or
Gender?
‘Sex’ is the term that is used consistently
within the legislation, with the exception of Tasmania, which uses
‘gender’.[46]
What is the difference? ‘Sex’ clearly has a biological dimension and
is sometimes contrasted with ‘gender’
to refer to the socially
constructed elements of masculinity and
femininity.[47] On
other occasions, sex and gender are used loosely and interchangeably so that the
biological dimensions of ‘sex’ merge
with the socio-cultural
elements, as may be seen from the legislative inclusion of ‘a
characteristic that is generally imputed’
to persons of one
sex.[48] Such a
provision would encompass gendered stereotypes, such as an assumption that men
are better suited to authoritative positions.
Marital status, pregnancy or
potential pregnancy, family responsibilities and sexual harassment are all
included in the SDA, denoting
the way they are interlinked, although one or more
of these grounds may be raised in conjunction with the ground of sex itself.
Breastfeeding
is a discrete ground in a number of jurisdictions, but not the SDA
where it is encompassed by ‘a characteristic that appertains
generally to
women’.[49] For
the most part, each ground is treated as a mirror image of the other, although
sexual harassment is treated separately, as will
be seen.
Sex may also
intersect with other proscribed grounds, such as race, disability, sexuality and
age. The issue of intersectionality
involving discrete grounds is theoretically
easier to deal with at the State or territory level, where all grounds are dealt
with
in the one Act. At the federal level, there are separate Acts for
race,[50]
disability[51] and
age[52], while
sexuality is not proscribed at all. However, as AHRC administers all federal
Acts and, if Mary happened to be an Indigenous
or non-English speaking
background (NESB) woman and she believed that race was a factor in her
rejection, she would not have to choose
between the grounds of race and sex in
the lodgement of her complaint. Intersectionality, however, is not properly
addressed by either
the legislation or
jurisprudence.[53]
Indeed, as well as sex plus race (See Ch 13), sex plus sexuality (See
Ch 15), sex plus disability (See Ch 14) and sex plus
age,[54] are all
problematic for women. In
Wiggins,[55]
sex, sexual harassment and disability were dealt with simultaneously, but not
intersectionally, by the Federal Magistrates Court.
In upholding the complaint
on the ground of disability, McInnes FM observed of the complainant, a former
Lieutenant in the Navy,
that her ‘recollection of the claims relating to
sexual harassment and unlawful discrimination should be viewed in the light
of
her then suffering from serious depressive illness and that she was then
undergoing active
treatment’.[56]
In an intersectional analysis, the Court would have considered whether the
incidents of sexual harassment and sex discrimination
contributed to the
complainant’s disability.
The intersection of sex plus a cognate
ground, such as marital status, pregnancy, family responsibilities or sexual
harassment is
more familiar. However, it is notable that when sex is coupled
with one of these grounds, attention tends to be deflected away from
sex
discrimination itself. Sexual harassment and reproduction appear to be somewhat
more tractable to remediation under the legislation
than the abstract notion of
sex discrimination, at least at the conciliation level, although the number of
complaints lodged remain
high. The way managerialism and merit, for example,
become entwined with masculinity and power cannot be easily captured, as
suggested
by the XYZ scenario. Despite the best endeavours of feminist scholars
to change conventional understandings of sex and gender, female
embodiment
remains at the heart of discrimination against women in the workforce, which
does little to challenge the power structures
underpinning the
discrimination.[57]
(ii) Marital Status
Marital status has attracted
relatively little litigation in its own right although it is a ground that is
often coupled with sex.
What if Mary’s partner, David, worked for OPQ, a
rival company of XYZ and she was refused the position as a result? Would this
constitute unlawful discrimination against her on the ground of marital status?
Again, the authorities are divided. In
Reddrop,[58]
the complainant was the best qualified applicant but she was cast aside when it
was learned that her husband worked for a rival pharmaceutical
firm. The
tribunal found that the decision was made on the basis of a characteristic
imputed to married women, namely, they are prone
to tell secrets to their
partners, but the decision was overturned by the NSW Supreme Court. The Court
held that ‘marital status’
did not extend to cover discrimination
based on the identity or situation of one’s spouse, which would
significantly restrict
Mary’s chances of success.
However, in
Waterhouse,[59]
another New South Wales case, in which the complainant had been denied a horse
trainer’s licence because she was married to
a rogue, the court
distinguished Reddrop. It found that the complainant in that case had a
close relationship with an employee of a competitor rather than because of a
characteristic
generally imputed to married women. This reasoning allowed the
court to find for the complainant. More recently, a biologist who
commenced
proceedings in the Federal Court against the Australian Stem Cell Centre because
she was allegedly dismissed for being
married to the centre’s former chief
executive, accepted an out-of-court
settlement.[60] While
the problem of Reddrop appears to have been partially resolved in New
South Wales, it could re-emerge as a result of Purvis. Hence, Mary would
be advised to lodge her complaint under the SDA.
(iii) Pregnancy or Potential Pregnancy
Despite the sustained
efforts to address pregnancy in the workplace through discrimination and
industrial laws,[61]
(See Ch 16) employers are reluctant to accommodate either the pregnant or
the post partum woman. There is a significant disjuncture between formal
policies that operate at a high level of abstraction and their implementation.
Pregnant women receive general societal approval –
but not in the
workplace. Psychological studies suggest that women, unlike men, trade perceived
workplace competence for warmth when
they become parents, a bias that extends to
pregnant
women.[62]
A first
typical scenario involves the time a woman informs her employer of her pregnancy
and seeks maternity leave. The employer,
unwilling to accommodate the pregnancy,
grant leave or guarantee the employee’s return to the same or a comparable
job after
maternity leave, alleges poor work performance by the woman, who may
then be dismissed.[63]
In determining whether direct discrimination has occurred or not, the
woman’s treatment is compared with a real or hypothetical
employee who was
similarly situated to the complainant, but with one proviso: ‘the only
impugned discriminant that needs to
be excluded from the characteristics of the
comparator is
pregnancy’.[64]
Even though the accusations and dismissal may well have been pretextual, HREOC
commissioners accepted the respondents’ reasons
for dismissal as bona fide
in as many as one-third of reported cases in the first twenty years of the
SDA.[65] This
underscores both the bias theory as well as the difficulty of satisfying the
burden of proof when the unlawful reason, viz,
dismissal on the ground of
pregnancy, becomes intertwined with the ostensibly lawful reason, namely, the
unsatisfactory performance.
The second typical scenario for women commonly
arises when a woman endeavours to return to work after maternity leave and finds
that
that she has been effectively demoted because the quality of her work has
been downgraded.[66] A
detriment may be found to have occurred, even if the woman is remunerated at the
same rate as
before.[67]
Comparability still has to be established in the case of direct discrimination
on the ground of pregnancy which means that the comparator
is an ‘employee
...who was not pregnant and who was returning after nine months leave and with
rights of the kind reflected
in the maternity leave
policy’.[68] In
proving that the less favourable treatment arose from pregnancy, maternity leave
has been accepted as a characteristic that appertains
generally to pregnant
women.[69]
The
ground of potential pregnancy refers to discrimination against women of
childbearing age arising from bias in the workplace against
them.
Wardley,[70]
the first case of sex discrimination to go to the High Court, is a classic
example. The complainant was rejected as a trainee pilot
because she was a woman
of childbearing age perceived to be someone likely to take extended leave.
Although this complaint arose
at the level of recruitment, the complainant was
able to demonstrate conclusively that she had performed better on the aptitude
tests
than a number of successful male applicants. The complainant survived a
constitutional challenge to win her case after a protracted
struggle.[71]
(iv) Family Responsibilities
The ongoing tension between public and
private life is apparent in regard to the struggle to effect a work/family
balance, an issue
that has been described as ‘the topic of the
21st Century for families, employers and
government’.[72]
This tension has engendered widespread ambivalence within discrimination
discourses. For example, the proscription of discrimination
in employment on the
ground of family responsibilities under the SDA is limited to the dismissal of
the complainant,[73]
including constructive
dismissal,[74] which
places the onus on the individual rather than the state. The ground is then
ostensibly sex-neutral and an appropriate comparator
is another worker with
similar workplace duties but without caring responsibilities. The legislative
limitation in the SDA means
that sex discrimination becomes the default
position, although State legislation is less restrictive. Thus, while caring for
a child,
elderly parent or other family member is not a characteristic of being
a woman in the way that pregnancy and breastfeeding are, a
claim of direct
discrimination on the ground of sex would have to establish that ‘the
characteristic of having responsibility
to care for their own children is a
characteristic that appertains generally to, or is generally imputed to,
women’.[75]
Conflation between family responsibilities and sex may occur via pregnancy
discrimination, as problems in the workforce frequently
arise following the
return from maternity
leave.[76] At that
stage, a familiar scenario is that some women wish to change their conditions of
work from full-time to part-time. This is
where the limited nature of the
proscription of discrimination on the ground of family responsibilities under
the SDA commonly compels
a complainant to resort to sex discrimination. Thus, a
condition or requirement that a woman must work full-time to maintain her
position has been found to constitute indirect discrimination on the ground of
sex, for it is a condition ‘likely to disadvantage
women’.[77] A
finding of constructive dismissal that constitutes indirect sex discrimination,
rather than discrimination on the ground of family
responsibilities, may result
from the refusal of part-time work because the condition impacts
disproportionately on women. Nevertheless,
the judicial response has been
uneven.[78]
Ambivalence persists because the question of whether the respondent has acted
reasonably or not is once again the
question.[79] The
complainant’s argument was not accepted in Howe because it was held
that Qantas did not impose a requirement on the complainant to work
full-time;[80] the
problem was that there were no part-time positions available. Driver FM made
clear that an employer can always refuse part-time
work if it is reasonable to
do so.[81]
What
constitutes discrimination is always viewed through the contestable lens of
reasonableness. If the complainant objects to the
work she is assigned after she
returns from leave, it would be clearly unreasonable to assign her even less
favourable assignments,
conduct that may crystallise as
victimisation.[82] In
contrast, in Evans, the evidence revealed that the complainant had taken
some time off as personal sick leave and carer’s leave. Although entitled
to this leave, which was accepted by Raphael FM, Branson J qualified the support
for it on appeal:
[I]t is not illegitimate for an employer, all other things being equal and provided indirect discrimination is avoided, to favour for re-employment an employee who takes limited leave over an employee who regularly takes a lot of leave, albeit that it is leave to which he or she is entitled.[83]
This view would seem to undermine the already tepid legislative commitment in
the SDA to the non-discrimination principle in respect
of family
responsibilities. While Branson J rejected the finding of sex discrimination and
constructive dismissal, she upheld the
discrimination on the ground of family
responsibilities, but reduced the amount of damages.
Ambivalence would seem
to beset the work/family interface at every
turn.[84] Jane, an
accountant with XYZ, was unable to obtain permission to work part-time and then
sought to work from home two days per week
to care for an asthmatic child. When
XYZ refused permission, she resigned and lodged a complaint of discrimination.
The challenging
question that emerges once again is what degree of accommodation
for Jane’s caring responsibilities is reasonable on the part
of XYZ?
Should an accountant be required to be physically present in the workplace on a
full-time basis when the technology is available
to enable the work to be
carried out at home for part of the working week?
The requirement or
condition in
Schou[85]
was that the employee should carry out the work of transcription as a
parliamentary Hansard reporter in the designated workplace,
a requirement with
which a higher proportion of the population who did not have the status of a
carer were able to
comply.[86]
Reasonableness was once again the sticking point. Phillips JA evinced hostility
towards the idea of accommodating the complainant,
finding it ‘almost
inconceivable that the attendance requirement for sub-editors to attend the
house on sitting days should
be regarded as not
reasonable’.[87]
His view was that employer prerogative should be unquestioningly upheld despite
a workable alternative. The Court of Appeal decision
and that of the Supreme
Court[88] contrasted
with the views of the Victorian Civil and Administrative
Tribunal,[89] which
makes it impossible to give firm advice to Jane. This is despite the fact that
XYZ would carry the burden of proof if Jane
lodged her complaint under the SDA,
whereas Ms Schou bore the burden of proving that the requirement or condition
was not reasonable
under the EOA (Vic). The divided opinions regarding the
work/family intersection highlight the gap between the legislative mandate
and
the conservative world view of those charged with administering what many still
regard as novel
laws.[90]
(iv) Sexual Harassment
Sexual harassment complaints are more
likely to be successfully conciliated than complaints of sex discrimination,
especially if the
behaviour is overtly (hetero)sexed and unwanted; the law has
no interest in consensual sexual activity between
adults.[91] It may be
that the greater willingness to accept sexual harassment as a discriminatory
harm is because sex at work has the potential
to disrupt productivity. In
analysing the phenomenon elsewhere, I have argued that the more sexualised
the harassment is in heterosexed terms, that is, where there is a
male harasser and a female target, the greater are the chances of success for
the complainant.[92]
If the sexual elements are less overt, the more difficult it is for a
complainant to succeed, as the complaint then merges into an
abstract issue of
sex discrimination.
In all cases, the burden of proof looms large at the
formal hearing level, especially if the impugned conduct took place in private.
Nevertheless, an employer cannot rely on the ‘private’ descriptor to
evade vicarious liability easily, although a harassing
employee may be joined as
a
respondent.[93]
The
paradigm of sexual harassment involves a male employee importuning a female
employee for sexual favours, although there are manifold
variations on this
theme. In Poniatowska v
Hickinbotham,[94]
the complainant had been propositioned by several co-workers, a lewd MMS
photograph had been sent to her, sexually explicit remarks
had been made by a
female supervisor and no remedial action had been taken by management when the
complainant made her grievances
known. Instead, the complainant was sent warning
letters for allegedly poor work performance and then dismissed. Mansfield J did
not agree with the negative assessment of the complainant’s work
performance: ‘In my judgment, the employer then determined
that she was a
person who did not “fit” its work environment because she was a
female who would not tolerate sexual harassment
and the robust work
environment’.[95]
Ms Poniatowska’s complaints in respect of both sexual harassment and sex
discrimination were therefore made out. In terms of
sexual harassment, the
relevant test was found by the judge to be satisfied, that is, a reasonable
person would have anticipated
that the complainant would be offended, humiliated
or intimidated.[96] In
addition, the judge found that Ms Poniatowska had been discriminated against on
the grounds of sex, being dismissed in circumstances
that would not have
occurred in the case of a male employee. What is remarkable about this case is
not only the unequivocal acceptance
of the complainant’s version of events
but the amount of damages awarded. The sum of $466,000 was awarded, which is
considerably
more than the few thousand dollars the typical complainant
receives.[97]
In
the case of lewd conduct on the part of co-workers, all tribunals have not been
as quick as Mansfield J in Poniatowska to find sexual harassment,
especially if the respondent has a sexual harassment policy in
place.[98]
Nevertheless, sexually permeated workplaces involving the display of
pornographic imagery and the normalisation of obscene language
and crude sexist
jokes may ground a finding of sexual harassment. They are frequently masculinist
workplaces where the female complainant
may be the first woman. Such a case was
Hunt [99] in
which the complainant was the first woman to be appointed as manager of the
Train Crew Assignment Centre for the New South Wales
Rail Corporation. The
hostile sexually permeated work environment was exacerbated by poor management
practices, which caused the
complainant to go on stress leave and then
resign.[100]
If
Mary did happen to be the first woman appointed to a senior managerial position
with XYZ, where there were disaffected male colleagues
who were resentful of her
exercising authority over them, she could find herself subject to harassment
designed to drive her from
the workplace. Bullying conduct and gender
disparagement, however, will not amount to sexual harassment without the
requisite sexual
dimension.[101]
Thus, if Bloggs were to prod Mary in the chest while telling her to do what she
was told, that may not constitute sexual
harassment.[102] The
test of being ‘offended, humiliated or intimidated’ would probably
not be met.[103] If
Mary were prodded in an erogenous zone, such as the breast, she might succeed in
respect of sexual harassment.
It nevertheless would be open for Mary to
argue that the harassment constituted sex discrimination, although it might be
hard to prove
less favourable treatment, even though she might suspect that a
male manager would not be treated in the same way. In
Hill,[104]
the NSW Equal Opportunity Tribunal found that ‘sex-based
harassment’ of a petty vindictive kind constituted sex discrimination
because the complainant was treated less favourably than a male manager.
However, one suspects that a barrage of micro-inequities,
including gender
disparaging remarks, may not have quite the same effect when directed at a male
manager. We see once again that
gender specific conduct does not lend itself
well to a strict notion of comparability.
Dispute Resolution
(i) Conciliation
Conciliation
is an informal mode of dispute resolution that involves a range of practices on
the part of an agency. A conciliation
officer acts as a go-between, which means
that a face-to-face meeting may not be necessary. Lawyers are usually not
involved, but
may be represented at a conciliation conference with permission.
(For a fuller treatment of ADR, See Ch 2). A settlement can be
effected on whatever terms the parties agree.
As mentioned, conciliation is
the primary mode of resolving disputes under anti-discrimination legislation
with no more than a tiny
fraction of complaints proceeding to formal hearing.
This does not mean that all complaints are resolved satisfactorily; many lapse
or are withdrawn because the complainant is worn down by what seems like a war
of attrition being conducted against
her.[105]
Conciliation does have some very positive features as a mode of dispute
resolution. It is cost-free, expeditious, flexible in terms
of effecting a
settlement and non-threatening. The parties might be represented at a
conciliation conference with permission, but
a face-to-face meeting may not be
necessary. The downside of conciliation is that the entire process takes place
behind closed doors.
The terms of settlement are also confidential, which
inhibits the dissemination of knowledge about discrimination to the wider
community.[106]
Formal Hearings
While the idea of pursuing justice in a public
tribunal or court and being declared to be in the right by a judge is appealing
in
theory, the reality can be a scarifying experience for a complainant, as
there may be a protracted hearing, followed by challenges
and appeals. In the
case of a powerful respondent, such as XYZ, which has substantial resources,
this could take years. The cocoon
of privacy enveloping the conciliation process
is replaced by the full glare of media publicity, which can be overwhelming in
the
case of sexual harassment complaints where aggressive cross-examination may
be a characteristic of the formal
hearing.[107] Mary
and Jane would have to be very resilient to persevere with a complaint within an
adversarial setting against a multinational
corporation. A stigma may also
attach to them for lodging a complaint about XYZ and pursuing it in a public
forum. In the light of
Mary’s senior executive status, it could even lead
to possible blacklisting and the inability to obtain another position in
the
future.[108] A
representative complaint initiated by a group of women who were all
deleteriously affected by the requirement of overseas experience
could deflect
attention away from Mary if it were feasible.
Hearings in the first
instance, such as those before the Federal Magistrates Court, are not bound by
the strict rules of
evidence.[109] A
complainant may appear in
person,[110]
although her credibility would probably be enhanced if she were
represented.[111]
The acceptance of the Briginshaw standard of proof discourages
self-representation as it exposes complainants to ‘unnecessary pedantic
legal
scrutiny’.[112]
It would be especially difficult for Mary to run a case based on indirect
discrimination unaided due to its complexity. XYZ would
undoubtedly be
represented by high status senior counsel who could choose to focus on technical
points of procedure to deflect attention
away from the merits of the complaint,
as occurs in respect of
constitutionalisation.[113]
Nevertheless, both she and Jane would find that legal aid for civil litigation
is limited.
Remedies
In contrast to the flexibility of conciliation, the
legislation sets out the bases on which a remedy might be effected at a hearing.
The ‘make whole’ principle underlies the raison d’etre of any
civil remedy. A payment of damages is the most familiar
means of compensating
for emotional harm and injury to feelings. In addition, economic loss, including
lost wages – front pay,
as well as back pay – medical expenses, and
loss of all kinds may be
compensated.[114]
Any reasonable act may be ordered, such as an apology or retroactive seniority.
Reinstatement is rarely practicable, as is an injunction
enjoining the
respondent not to persist with the discriminatory conduct. The possibility of
encountering a hostile workplace would
suggest that a damages award would be
most appropriate for Mary, whereas flexible conditions of work might be more
appropriate for
Jane.
Policy changes may be negotiated at the conciliation
level but are problematic at the quasi-judicial and judicial stage where the
focus is on compensating the
individual,[115]
although the NSW Administrative Decisions Tribunal may order the development and
implementation of a program in respect of a vilification
complaint.[116]
While the principle underpinning hearings before specialist tribunals in the
past was that each party pay their own costs, a more
legalistic approach arising
from the shift towards general tribunals and courts has seen an increasing
tendency to award costs against
the unsuccessful party, which makes the
litigation route risky business.
Conclusion
This chapter has outlined the contemporary approach
towards issues of concern in relation to sex discrimination in the workforce.
It
has highlighted the problems arising from legislation that favours formal
equality. The jurisdiction can be positive for the occasional
woman who is able
to establish that she was treated less favourably than a comparable male
colleague in instances that are overt,
but is problematic in cases involving
pregnancy, maternity leave and caring responsibilities, where comparability is
contestable.
An indirect discrimination complaint may succeed in instances where
the impugned practice is egregious but, for the most part, instances
of systemic
discrimination are not tractable to remediation. The heroic complainant requires
fortitude, tenacity – and resources
– to challenge any instance of
discrimination beyond the level of conciliation.
[*] Thanks to Dr
Trish Luker for research assistance and the Australian Research Council for
financial
assistance.
[1]
Margaret Thornton, 1995, ‘The Cartography of Public and Private’, in
Margaret Thornton (ed), Public and Private: Feminist Legal Debates,
Oxford University Press, Melbourne, pp
2–16.
[2] In
2007–08, 87 per cent of complaints lodged with HREOC under the SDA related
to the area of employment. See Human Rights and
Equal Opportunity Commission,
2008, Annual Report 2007-2008, p
50.
[3] Joan
Williams, 2000, Unbending Gender: Why Family and Work Conflict and What to do
about it, Oxford University Press, New
York.
[4] Sex
Discrimination Act 1984 (SDA Cth); Anti-Discrimination Act 1977 (ADA
NSW); Equal Opportunity Act 1995 (EOA Vic); Anti-Discrimination Act
1991 (ADA Qld); Equal Opportunity Act 1984 (EOA SA); Equal
Opportunity Act 1984 (EOA WA); Anti-Discrimination Act 1998 (ADA
Tas); Discrimination Act 1991 (DA ACT); Anti-Discrimination Act
1992 (ADA NT).
[5]
Peter Bailey, 2009, The Human Rights Enterprise in Australia and
Internationally, LexisNexis Butterworths, Sydney; Neil Rees, Katherine
Lindsay & Simon Rice, 2008, Australian Anti-Discrimination Law: Text,
Cases and Materials, Federation Press, Sydney; Chris Ronalds, 2008,
3rd ed, Discrimination Law and Practice,
Federation Press, Sydney; Patricia Easteal, 2001, Less than Equal: Women and
the Australian Legal System, Butterworths, Sydney; Rosemary Hunter, 1992,
Indirect Discrimination in the Workplace, Federation Press, Sydney;
Margaret Thornton, 1990, The Liberal Promise: Anti-Discrimination Legislation
in Australia, Oxford University Press,
Melbourne.
[6] SDA s
3.
[7] Australia
ratified ILO Convention 156, Workers with Family Responsibilities, in 1990. In
1992, the ground was included in the SDA.
All States and Territories, except
South Australia, now include parental status, or a cognate term, as a ground in
their anti-discrimination
legislation: ADA (NSW) s 49(s); EOA (Vic) s 6(1); ADA
(Qld) s 7(1)(d); EOA (WA) s 35A; ADA (Tas) s 16(i); DA (ACT) s 7(1)(e); ADA
(NT)
s 19(1)(g).
[8] See
Equal Opportunity for Women in the Workplace Act 1995
(Cth).
[9] Eg,
Regents of the University of California v Bakke [1978] USSC 145; 438 US 265
(1978).
[10] Eg,
SDA ss 7D, 31 & 32. A women’s health service was upheld as a bona fide
special measure in Proudfoot v ACT Board of Health (1992) EOC
92-417
(HREOC).
[11]
Margaret Thornton, 2001, ‘EEO in a Neo-Liberal Climate’, 6(1)
Journal of Interdisciplinary Gender Studies, pp 77–104;
Glenda Strachan, John Burgess & Lindy Henderson, 2007, ‘Equal
Employment Opportunity Legislation and Policies:
The Australian
Experience’, 26 Equal Opportunities International, pp
525–540.
[12]
See the debates at
<http://www.aph.gov.au/hansard/index.htm>
accessed 7 August 2009. For commentary, see Susan Ryan, 2004, ‘The
“Ryan Juggernaut” rolls on’, 27 University of New South
Wales Law Journal, pp 828–832; Susan Magarey, 2004, ‘The
Sex Discrimination Act 1984’, 20 Australian Feminist Law Journal,
pp
127–134.
[13]
Thornton, The Liberal Promise, n 5 at 6.
[14] Paula
McDonald & Kerriann Dear, 2008, ‘The Incidence and Patters of
Discrimination and Harassment affecting Working Women
in Australia’, 22
Women’s Studies Journal, pp 37–48.
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