The Sex Discrimination Act - What it tells us about issues for women in employment
Speech by Moira Scollay, Acting Sex Discrimination Commissioner at the 6th Women and Labour Conference, November 28-30 1997
First I would like to thank the organisers for giving me the opportunity to speak at this very important conference.
My talk will focus on the trends that can be drawn from recent data on complaints lodged at HREOC under the Sex Discrimination Act (SDA) and the issues these raise.
I will be arguing that (systemic) sex discrimination flows from the culture of a workplace - that is, it is not only the actions of individuals that we need to concern ourselves with but the culture that legitimises those individuals to act in an unlawful manner.
I will look at this in relation to sex and pregnancy discrimination and sexual harassment complaints data.
Before I turn to this I would like to give an overview of all complaints lodged under the SDA during the 1996/97 financial year.
Six hundred and sixty two complaints were lodged during this period. This represents an increase of 35 percent from the previous years figures in relation to central office only. Of these:
- 34 percent were withdrawn
- 29 percent were conciliated
- 22 percent were declined, and
- 15 percent were referred to hearing.
In relation to the grounds of discrimination complained about:
- 48 percent alleged sexual harassment
- 26 percent alleged sex discrimination
- 10 percent alleged pregnancy discrimination
- 6 percent alleged marital status, and
- 10 percent were for other reasons.
Overall 84 per cent of these complaints were made in relation to employment, (10 percent for goods and services). Eighty six per cent of all complaints under the SDA were lodged by women.
Sex discrimination
As mentioned, allegations of sex discrimination represented 26 percent of the complaints made during the 1996-97 financial year.
Research conducted by Rosemary Hunter and Alice Leonard in 1994 based on a sample of 218 complaints showed that the average complainant in sex discrimination cases is an Anglo-Australian woman aged in her early 30s, in the labour force in a professional occupation. The average respondent is a small-to-medium sized private sector corporation and is the former or current employer of the complainant. However, in complaints lodged with the central office in Sydney, the average respondent is a more likely to be a multi-site statutory authority with 1000 or more employees.
Indirect discrimination continues to be an undeveloped area in relation to all grounds under the SDA. The majority of complaints of indirect discrimination are sex discrimination matters as opposed to marital status or pregnancy.
Sixteen complaints of indirect sex discrimination were lodged in the last financial year.
The few cases of indirect sex discrimination that have been referred to public hearing demonstrate a far greater potential to reach to the heart of sex discrimination in employment.
A recent example is the case of Dunn-Dyer v ANZ Banking Group Ltd. Susan Dunn-Dyer complained of sex discrimination after being made redundant from a managerial position with the ANZ bank. While employed Ms Dunn-Dyer had been referred to as a ‘mother-hen’ and her unit as ‘the nursery’ and a ‘mother’s club’. Evidence was brought that demonstrated senior male managers saw Ms Dunn-Dyer as being inflexible and aggressive and as lacking interpersonal skills.
At the hearing Commissioner Stephen Keim, held in favour of Ms Dunn-Dyer. Commissioner Keim held that the evidence demonstrated that senior managers had negative views toward Ms Dunn-Dyer because she was a woman. These views, based on characteristics that they imputed to all women, affected the way in which they viewed Ms Dunn-Dyer’s skills. When decisions were made as to which workers were to be made redundant, Ms Dunn-Dyer was targeted because senior managers did not value her work.
The Dunn-Dyer case demonstrates much about sex discrimination in employment. It shows that in many workplaces women continue to fight an uphill battle against a prevailing culture that has changed little over the last fifteen years.
Although considerable work has been done in many industries, including the finance sector where Ms Dunn-Dyer worked, professional cultures and attitudes continue to disadvantage women.
Policies to address sex discrimination cannot simply start with a policy on harassment and finish with an encouragement to women to apply for a promotion. The attitudes and cultures which exclude women, operate throughout our workplaces and industries.
It is heartening to see that some women are using the SDA to address more subtle expressions of discrimination.
These complaints are difficult to prove but should be assisted by the 1995 amendments to the indirect discrimination provisions of the SDA - such as in the reversal of the onus of proof from complainant to respondent.
Many people fail to recognise that acting on sex stereotypes and assumptions is a form of discrimination. Women are all too used to having different expectations placed upon them. Attitudes and cultures become a normalised part of women’s working lives.
Pregnancy discrimination
Pregnancy discrimination is another area which demonstrates, that there are still cultural shifts that must occur before women achieve equality in employment.
Women in employment have been entitled to unpaid maternity leave for many years. In 1993, the then Industrial Relations Act was amended to make unpaid parental leave a legislative right. In the late 1990's the law clearly stated that access to parental leave is one of the minimum conditions of employment. Complaints of pregnancy discrimination suggest that in many workplaces, these entitlements are still seen as privileges and not rights.
Over the last few years pregnancy discrimination has been alleged in between five and ten percent of complaints under the SDA. As with other grounds the clear majority of complaints arise in employment settings.
One of the danger times for pregnancy discrimination is immediately after employers are informed that a woman is pregnant. A disturbing number of cases are as a result of women being dismissed, moved to lower grades of work or pressured to leave after informing employers and colleagues of their pregnancy.
As with sexual harassment complaints, these more blatant forms of pregnancy discrimination appear to occur more often in small and medium sized enterprises. These sectors have clearly not absorbed the anti-discrimination message.
As with sex discrimination complaints, pregnancy discrimination by larger employers is likely to be more subtle. In particular, it appears that discrimination results from women becoming invisible while absent from the workplace on maternity leave.
In July of this year, HREOC decided the case of Coard v Mobile Pty Ltd in favour of the complainant. The complaint arose as a result of a major restructure company restructure. Like many organisational restructures, Mobil was downsizing. Several positions at Ms Coard’s level were abolished. When Ms Coard returned from maternity leave she was told that she would have to take project work until another position could be found. At no stage had she been consulted, nor considered for alternate positions. Ms Coard was simply invisible during a period of rapid organisational change.
The Coard case is not an isolated one. Many of you will be aware that earlier this year, HREOC handed down its decision in the case of Finance Sector Union v Commonwealth Bank of Australia, another case in which women were discriminated against by not receiving equal treatment in an organisational restructure.
It is hard to say what is definitely going on in this area. Some employers appear to have simply forgotten to include employees on extended leave in consultation and negotiation processes. Maternity leave can put you out of sight and out of mind and at risk of discrimination.
Clearly some workplaces need to think through what a right to parental leave means for the way they do business. We have not yet achieved a cultural change so that it is common practice to ensure that workers on maternity leave are considered along with the rest of the workforce.
Sexual harassment
From 1986/87 to 1993/94 complaints of sexual harassment under the SDA increased six fold. Since 1993/94 complaint numbers have remained relatively stable. Sexual harassment, however, continues to represent the single greatest cause of complaint making up around half of all complaints lodged under the SDA. By far the greatest majority of sexual harassment complaints received are employment related.
The most typical sexual harassment complaints involve young women employed in low level jobs, often in small business. In the last financial year approximately sixty complaints of sexual harassment were made from women working in small businesses.
These women often allege that they have been sexually harassed by a male co-worker or their employer. The type of behaviour and responses made to internal complaints have not changed much over the last five years.
Women still feel the need to leave their jobs because of the harassment or are dismissed for alleged poor work performance. We still get very few sexual harassment complaints from professional women, although we do receive enquiries and requests for advice. There are a number of possible explanations for this. Professional women may have better access to an internal infrastructure within their organisation for making a sexual harassment complaint, or they may be more fearful of the potential career ramifications of speaking out. A report by the NSW Ministry for the Status and Advancement of Women, called Women Working in the Legal Profession, suggests that it is the latter.
Sexual harassment has the highest success rate for complainants of all SDA complaints which go to public hearing. It’s also the area where we are seeing significant increases in the level of damages awarded. I think that this is probably because sexual harassment deals with concepts which are familiar to our legal system. There is an identified injury and blame can be sheeted home to an individual perpetrator. The law finds concepts of indirect or systemic discrimination much more problematic.
I would argue, however, that although better recognised as a harm, the presence of sexual harassment often indicates broader systemic discrimination - a factor which is rarely identified.
To illustrate this I will look at the concept of what is referred to as a sexually hostile working environment.
It has been made clear by various decisions that a sexually permeated, offensive or intimidating work environment constitutes sexual harassment. It is well established that conditions of employment include the psychological and emotional work environment.
Complaints relating to hostile work environments are an increasing proportion of complaints compared with specific acts directed at an individual person. In the last financial year around thirty of the sexual harassment complaints came from male dominated areas of employment and where the workplace was described as sexually hostile to women.
Many of the sexual harassment complaints received in relation to the defence forces have been about hostile working environments. Hostile environments are characteristically found where women enter non-traditional jobs and men resent their entry, workplace culture emphasises physical toughness, recruitment practices deny access to women, and the work site may be isolated. Indicators of a hostile work environment include sexually explicit conversation, innuendo and posters.
Male working culture may promote the sexualisation and objectification of women even though they are their fellow workers. The use of pin-ups in male work sites and sexual banter and jokes are good examples of this. Their use can be viewed as signs of group solidarity. Women who choose to work in male dominated environments are often expected to accept such behaviour as part of the price that they pay for working there.
Resistance to the entry of women into previously all male work domains may also generate sexually harassing behaviours as a means of `defending the territory'.
In almost all cases that involve sexually hostile environments, the women have been forced out of their jobs. They are often so traumatised by their experience they are unable to return to work. Frequently they are unable to continue in the same kind of work and have to retrain and reorient themselves to something different.
In these circumstances sexual harassment is pervasive and well entrenched within the culture of the organisation. The organisation or workplace may condone or even encourage the behaviour as it is seen as acceptable or `normal'. The harassment can be directed to individuals but is often directed at all women in the workplace.
Addressing individual cases of sexual harassment in these environments are unlikely to have much impact on the broader "discriminating climate". For example, the training and awareness raising on sexual harassment prevention that has occurred in the defence force, has been beneficial but has not addressed the systemic and structural problems that sexual harassment is a manifestation of.
The cultural audit activities that Dr Clare Burton and others have conducted in relation to the defence force and various male dominated industries and occupations are essential to identifying and thereby addressing the core discrimination issues.
Solutions also do not lie in encouraging women away from work in male dominated workplaces. Women should have the choice to move into these areas. There are sound economic efficiency arguments to support the assertion that denying women access to employment areas or positions is not a viable option. In the last two decades, considerable attention has been paid by governments to the sexually segregated nature of employment in Australia, and the economic inefficiency brought about by this. The harmful effects of segregation on the efficiency of organisations and the economy has been noted. It is particularly important that the special problems faced by women who choose a career which is a "man's" job are recognised and dealt with effectively.
Conclusion
Earlier this year, Professor Leonie Still wrote in relation to women in the finance sector:
the banks have introduced certain policy initiatives to improve the employment status of women, such as job-sharing, sexual harassment policies and flexible working hours. Yet, because of various operational and attitudinal responses, these initiatives have not produced a significant change of culture. The core issues have not been addressed or impacted. Rather the policies have merely tinkered around the edges.
Professor Still could have been speaking about workplaces in any number of industries across the country.
So what does the SDA have to tell us about issues for women in employment?
Simply this:
Sex discrimination is deeply ingrained in the way we work. It is part of workplace and industry culture.
Addressing sex discrimination therefore is neither quick nor easy. Removing sex discrimination calls us to develop strategies which address the different cultures of each of our workplaces and the ways in which it is manifested.
We have made real gains in the last 13 years in some of these areas. The challenge now for us all, is to repackage the message to address new features of work in the 1990's and areas women are still only just breaking into.
It is a challenge to change not to change individual behaviour but actual workplace cultures. A difficult task - but a task we cannot neglect if we are truly serious about gender equality at work.
Last updated 1 December 2001
