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Eliminating Discrimination and Harassment from your workplace: Pru Goward (2005)

Sex Discrimination

Eliminating Discrimination and Harassment from your workplace

Pru Goward Sex Discrimination Commissioner

Employee Assistance Professionals Association of Australia (EAPA), Wesley Conference Centre, Green Room, 200 Pitt Street Sydney NSW 2000, Tuesday 3 May 2005


Thank you for inviting me to address your seminar today.

Eliminating discrimination and harassment from a workplace is a tall order; whilst we might be able to reduce the incidence, it is difficult to imagine a world without either of these evils. But if there is such a world, it would be one of equality. In a world where women and men are actually treated equally, discrimination and harassment cannot exist.

Sexual harassment in particular is the result of not only power imbalances between men and women but of a lack of respect for women and their right to work peaceably and safely.

It would seem uncontroversial to begin by observing that the principle cause of the inequality between men and women at work today is family responsibilities.

Whilst a century ago doctors may have declared that reading and scholarship would make women infertile, or that university study would lead to women becoming invalids or lunatics because of their confinement to darkened libraries and unnatural light, today most disadvantage experienced by women is of a less florid and irrational kind- not all disadvantage, but most.

Today, most discrimination or disadvantage experienced by women is the consequence of their family responsibilities or potential for child bearing.

That is not to say that sexist beliefs do not persist, or that the relatively smaller physical stature of women does not make them more vulnerable to violence and harassment-at the hands of cowardly men who would not dream of taking them on if they thought they would fight back.

The purpose of my address is to describe the armoury at our disposal in this battle for the elimination of discrimination and harassment, that is, the battle for equality, in Australia today.

Briefly, those four strategies are: the law -primarily the Sex Discrimination Act and industrial legislation such as the Workplace Relations Act, the business case, (that is, economic efficiency) government regulation and assistance, and finally, cultural change.

The business case is perhaps the best known argument for reducing inequality- it costs money to have second rate people in jobs because employers don"t hire and fire and promote on merit. It makes companies and countries economically uncompetitive.

Not recognising the family responsibilities of female workers disadvantages and discriminates against them; they lose from this but so does the company"s bottom line.

The retention of staff, particularly skilled staff, is becoming a key cost issue for competitive businesses today, especially in a country with emerging skill shortages and unemployment generally headed for 4%.

Likewise ensuring that your workplace is free from sexual harassment, and that incidents of harassment will be firmly dealt with, is another plank in minimising staff turnover.

The recent study of sexual harassment complaints received by the Human Rights and Equal Opportunity Commission revealed that more than four in five women who made a complaint had also left that workplace- either sacked or resigned or not renewed. Every staff change costs money and time.

But if the business case were enough on its own, you and I would not be here today.

Business is not always economically national.

The law is also a powerful tool in discouraging and reducing discrimination and harassment in the workplace, and together with government assistance, cultural change becomes possible.

Cultural change is the key.

Laws need policing and eat up significant financial resources from all the parties concerned.

Government assistance, such as the monitoring and regulatory role provided by the Equal Opportunity for Women in the Workplace Agency, also takes tax payers" money. Education and awareness raising also cost money but ultimately, when case law, government assistance and awareness raising are put together, cultural change becomes possible.

Cultural change is the opening of hearts and minds to new ideas and values. It is the voluntary adoption of new ideas and values. It is self-policing. As history demonstrates, cultural change is powerful, invisible and free.

It is important to recognise that reliance on either industrial or discrimination law alone to achieve cultural change is unwise, but on the other hand it is also unlikely that change can be achieved without the support of the law.

Let me begin with the Sex Discrimination Act.

It is more than a little disheartening to realise that 2005 marks the 21st anniversary of the passage of the Sex Discrimination Act, because contemporary research and experience shows that precisely the forms of sex discrimination that are covered by the legislation are alive and well in the Australian community.

The areas covered by the Act are

  • sex
  • marital status
  • pregnancy and potential pregnancy
  • family responsibilities and
  • sexual harassment

The act makes discrimination on any of the grounds of sex, marital status, pregnancy or potential pregnancy unlawful.

Indirect discrimination, where an action has the effect of discriminating against a class of worker, for example mothers, is also outlawed. In cases of indirect sex discrimination it is not necessary to prove the employer intended to discriminate on the grounds of sex, merely that the employer"s actions had that effect.

The Act also makes dismissal on the grounds of family responsibilities unlawful and finally, under the Act, as with comparable state and territory legislation, sexual harassment unlawful.

It is hard to believe that within our life times we lived and worked in a world where women could have their bottoms pinched, dirty posters put up everywhere and cop sexual propositions from the boss or a co worker without any legal recourse. They just had to put up with it.

Sadly, despite the law, many women still feel the same today, although it is my belief that this is changing.

Women have worked too hard to get into the workforce and rely on its benefits too much, to be so easily intimidated or driven away. For let there be no mistake- sexual harassment is not merely courtship gone wrong. It is not flirtation, attraction or friendship which is invited, consensual or reciprocated.

Sexual harassment is any unwelcome sexual conduct that makes a person feel offended, humiliated or intimidated and where a reasonable person would have anticipated that response.

There is a subjective but also an objective test.

I have brought with me three of the Commission"s most recent publications on sexual harassment and I recommend you get a set if you do not have one already.

The Commission"s offices are on the 8th floor of this building, the Castlereagh Street entrance, and you are welcome to collect them. I have brought only two sets plus some pamphlets you might find useful.

  • 20 Years On: The Challenges Continue...Sexual Harassment in the Australian Workplace;
  • The revised edition of Sexual Harassment in the Workplace: A Code of Practice for Employers
  • A review of sexual harassment complaints received by the Human Rights and Equal Opportunity Commission and
  • These posters, for schools and workplaces, encouraging victims of sexual harassment to "speak out" and perpetrators to "stop" their harassing behaviour.

These publications are the final product of a review the Commission has undertaken on what we know about, and how we manage sexual harassment in the workplace.

The review found that sexual harassment at work remains a perennial issue for women and some men, in paid work.

It is a form of unlawful sex discrimination that continues to act as a barrier to a woman"s full participation in the workplace and to the realisation of substantive equality.

20 Years On: The Challenges Continue...Sexual Harassment in the Australian Workplace reports the findings of the first ever national survey of sexual harassment in the Australian community.

The survey, conducted by the Gallup Organization, on behalf of the Commission, was a national household telephone survey of over a thousand Australians aged between 18 and 64 years.

Overall, the survey found that 28 per cent of adult Australians had experienced sexual harassment at some time in public life - 41 per cent of all women and 14 per cent of all men.

Sexual harassment in the workplace was experienced by 18 per cent of all respondents.

Broken down by gender, 28 per cent of Australian women and 7 per cent of men have been sexually harassed at work.

How do these figures compare on a global scale?

The telephone survey has confirmed that the incidence of sexual harassment in Australia is broadly comparable with that of some other countries.

The New Zealand experience for example, recently measured by the New Zealand Human Rights Commission, is that 15 per cent of people have been sexual harassed at work.

Our survey also provided an insight into the nature of the sexual harassment experienced in the workplace.

Sexual harassment often begins with verbal abuse, innuendo or unwanted sexual comments.

It may go on to involve behaviour such as propositioning, asking for sexual favours, unwanted touching, assault or even rape.

Over half of the sexual harassment experienced in the workplace involved physical forms of sexually harassing conduct, including unwelcome touching, hugging, cornering, kissing or unnecessary familiarity.

However, non-physical types of sexual harassment were most frequently experienced, such as suggestive comments or jokes, staring or leering, sexually explicit emails or SMS messages, and sexually explicit pictures or posters.

Importantly, a significant proportion of the sexual harassment experienced in the workplace was perceived as serious in nature with half of the interviewees to the survey rating the experience as very or extremely offensive.

The Challenges Continue also compares the results of the telephone survey with the findings of a review undertaken by us of sexual harassment employment complaints made to the Commission.

A Bad Business: Review of sexual harassment in employment complaints 2002 was released late in 2003. It provided excellent information about the nature of sexual harassment in employment complaints made to the Commission.

It did not, and could not, however provide information about the general incidence and nature of sexual harassment in the Australian community - that being the intention of the random telephone survey.

Comparing the results of A Bad Business and The Challenges Continue provides insight into the similarities and differences between the workplace sexual harassment reported to the Commission and that experienced by members of the community.

Some of the findings of this comparison are:

  • Seven in ten cases of sexual harassment in the telephone survey involved men harassing women, but significantly, 21 per cent of identified harassers were female - mostly harassing male victims.
  • Only five per cent of the workplace sexual harassment complaints reviewed in A Bad Business were made by men.

This suggests that male targets of harassment are less willing to make a complaint or formally address sexual harassment. It also suggests that men may need to be made more aware of their rights to protection from sexual harassment.

In relation to the harassers - almost half of the harassers in the telephone survey were co-workers of the target, with over a third of harassers a person in authority in the workplace in relation to the target.

Of those harassed by someone in authority, the harasser was more likely to be male than female.

This is broadly in line with the findings of A Bad Business where 61 per cent of the alleged harassers were in positions of authority in relation to the target of the harassment, and over a third of alleged harassers were co-workers of the target.

The telephone survey also found that less than one third of the workplace sexual harassment experienced is formally reported to either employers or external agencies, such as the Commission.

Of the sexual harassment reported, most is reported to the target"s manager, supervisor, employer or boss. A vote of confidence in the boss!

The reasons given by interviewees to the telephone survey for not reporting the sexual harassment basically fell into three categories:

  • A lack of faith in the formal grievance or complaints mechanism;
  • A belief that the experience was not serious enough to warrant reporting; and
  • The target preferring to deal with the problem themselves.

As we would expect, only one per cent of workplace sexual harassment is reported to anti-discrimination agencies such as the Commission. We have long thought, and now can show, that sexual harassment taken to the Commission and other anti-discrimination agencies is only the tip of the iceberg.

It is encouraging that the telephone survey results found that of those who have witnessed incidents of workplace sexual harassment in the five years prior to the survey, the vast majority took an active role in addressing it.

This included confronting the harasser. It includes other men as well as well as other women.

It appears that a message of intolerance and unacceptability concerning sexual harassment is certainly being heard in some workplaces.

This is a message that employers need to play a crucial role in promoting if it is to gain further acceptance.

It requires employers managing both the prevention and incidence of sexual harassment in their workplaces.

The Challenges Continue suggests a number of ways in which employers can successfully manage both of these elements.

To further assist employers in doing so the Commission has also substantially revised and updated its Code of Practice, first released in 1996.

This brings us to the third publication, Sexual Harassment in the Workplace: A Code of Practice for Employers.

The Code of Practice is based on a number of general principles of sexual harassment law summarised from the Sex Discrimination Act and case law, giving employers an overview of their legal obligations.

The Code of Practice sets out simply and clearly what constitutes sexual harassment; how employers can be liable for sexual harassment; and how employers can avoid liability by taking all reasonable steps to prevent sexual harassment in their workplaces.

The Code of Practice also includes helpful examples from the case law on sexual harassment, and common workplace situations where sexual harassment may occur.

Step-by-step guidance in formulating a written policy on sexual harassment is also contained in the Code of Practice, as well as how to establish formal and informal complaints processes for employees.

Lastly, these two posters on sexual harassment.

The posters contain messages that are relevant to workplaces, universities and schools.

The first is targeted at young women in schools, TAFEs and universities. It encourages young women who have experienced sexual harassment to speak out about it.

The second poster is aimed primarily at perpetrators of workplace sexual harassment. It seeks to alert men, who are predominantly the perpetrators of sexual harassment, about the nature and impact of their conduct and warn them to stop their behaviour.

And this leads me to the final point I would like to make about sexual harassment in the workplace.

Ultimately, it is up to employers to ensure that there is no place for sexual harassment in their workplaces.

Employers set the tone. They determine the workplace culture. They also bear liability- vicarious liability and sometimes direct liability. No employer, no matter how small, is exempt.

It is true however that the courts do not expect small employers to have the same prevention policies as large employers when deciding the degree of liability- and therefore damages.

For a small employer, for example, it may be enough for each staff member to be provided with staff conduct guidelines which specifically outlaw sexual harassment and a regular warning from the boss that this conduct is unwanted.

In larger work places, employers may be expected to have sexual harassment contact officers and transparent grievance procedures which can be applied to complaints of sexual harassment.

Prevention of sexual harassment is crucial for workplaces and a workforce which prides itself on rewarding merit, refuses to tolerate discrimination and fosters gender equality.

Prevention is a great deal more difficult than implementing grievance procedures. It is about actively discouraging it. It is part of employer liability and it should be taken seriously, especially in a climate of labour shortages and increasing awareness of employee rights.

Hopefully these publications will provide the necessary guidance and I commend them to you.

A Bad Business coupled with The Challenges Continue are useful in assisting in the prevention of sexual harassment and the development of appropriate policies.

The revised Code of Practice should also assist Australia"s employers large and small, to take up the challenges of sexual harassment - the challenge of eradicating it from our workplaces.

I would now like to turn to the case law surrounding the Sex Discrimination Act more generally, particularly those cases concerning the ability of women to combine work and family responsibilities.

The difficulties women face in the workplace are reflected in a growth in precedent over the last few years under the federal Sex Discrimination Act. These cases concern discrimination under the Act alleged by women either seeking to return to work following maternity leave, or seeking to vary working hours to meet family responsibilities connected with a young child.

In the last few years issues in the workplace concerning pregnancy and maternity have been well canvassed, especially in HREOC's report following the National Pregnancy and Work Inquiry entitled "Pregnant and Productive: It's a right not a privilege to work while pregnant", published in August 1999.

HREOC"s Pregnancy Guidelines to help workplace participants to understand and fulfil their obligations under the Sex Discrimination Act 1984 (Cth) ("the SDA") emerged from that report. Those guidelines are available on the HREOC website.

Section 3.4 of the Guidelines deals with the return to work after maternity leave, and correctly makes two observations:

"Under industrial relations laws, awards and agreements as well as the federal Sex Discrimination Act, an employee is generally entitled to return to the position she held prior to commencing leave or to a comparable available position if her original job has ceased to exist ..."; and

"An employee returning from maternity leave may also wish to work part-time or on a job-share basis. Awards, agreements, and some State laws specifically allow for a return to part-time work after maternity leave by agreement with the employer. In some situations, an employer may be deemed to have made a discriminatory decision if a reasonable request for part-time work is refused."

The most relevant cases are Thomson v Orica Australia Pty Ltd1, Rispoli v Merck Sharpe & Dohme (Australia) Pty Ltd & Ors,2 Song v Ainsworth Game Technology Pty Ltd,3 Escobar v Rainbow Printing Pty Ltd (No. 2),4 Mayer v Australian Nuclear Science and Technology Organisation,5 Evans v National Crime Authority6 and Kelly v TPG Internet Ltd 7

In each case, except Kelly, in relation to the refusal to offer part-time employment, the employer after a strenuous denial on the issues that went to trial was found to have unlawfully discriminated against the applicant, and significant monetary awards were made.

Within the reasons for decision there is discussion of both direct and indirect discrimination.

The SDA renders unlawful both types of discrimination in the workplace on the grounds of the sex or marital status of the aggrieved person, and on the ground of pregnancy or potential pregnancy.8

In the case of family responsibilities, the SDA only renders unlawful direct discrimination on that ground, and then only if the discrimination results in the dismissal of the employee.9

This is important as there are different tests for direct and indirect discrimination.

When direct discrimination is alleged the test is whether by reason of one of the prescribed characteristics the alleged discriminator has treated the aggrieved person less favourably than, in circumstances that are the same or not materially different, the discriminator treats or would treat a person without that characteristic.10

This requires the court to identify a comparator and then to determine whether the aggrieved person has been treated less favourably.

In the case of indirect discrimination the test is quite different. Indirect discrimination occurs where the employer imposes an unreasonable condition, requirement or practice that has or is likely to have the effect of disadvantaging persons who have the prescribed characteristic - sex, marital status or pregnancy.11

There is no need to inquire if the aggrieved person is being less favourably treated than a comparator. The Act provides that indirect discrimination does not occur where the imposition of the condition, requirement or practice is reasonable in the circumstances.12

As unlawful discrimination on the ground of family responsibilities can only be direct, in such a case the reasonableness of the different treatment that constitutes discrimination is not a defence.

In five of the seven Federal Magistrates Court cases the employer did not meet a request to work part-time, or to accommodate time off to meet child care requirements. In four of these five cases the refusal of part-time work was held to be discriminatory.

In Escobar and Mayer (and by implication in Song) the court characterised the employers' stance as indirect discrimination on the ground of sex contrary to s5(2) of the SDA as the denial had the effect of imposing a requirement to work full-time or during inflexible times, and such a requirement was likely to disadvantage women.

In Escobar and Mayer the court followed observations made by Commissioner Elizabeth Evatt in the well-known case of Hickie v Hunt and Hunt13 where she inferred "from general knowledge that women are far more likely than men to require at least some periods of part-time work during their career, and in particular a period of part-time work after maternity leave in order to meet family responsibilities."14

I do not think that this proposition can be doubted, and it is likely to be accepted by courts in this area without the need for evidence.15

If that is correct, the issue of contention that will arise in this type of case is whether the imposition of the requirement is reasonable in the circumstances. The SDA directs that in applying the reasonableness test matters to be taken into account include:

  1. the nature and extent of the disadvantage resulting from the imposition, or proposed imposition, of the condition, requirement or practice; and
  2. the feasibility of overcoming or mitigating the disadvantage; and
  3. whether the disadvantage is proportionate to the results sought by the person who imposes, or proposes to impose, the condition, requirement or practices."16

These non-exhaustive factors indicate that reasonableness involves a balancing of matters affecting both the employer and the employee. The hardship to each must be considered.

Section 7C provides: "In a proceeding under this Act, the burden of proving that an act does not constitute discrimination because of section 7B lies on the person who did the act".

Unless the employer demonstrates by evidence the reasons why in its business the request could not reasonably be met, and, moreover, demonstrates that it properly understood the situation of the employee and appropriately took it into account, the employer is likely to lose.17

A strong message about good management comes out of each of these cases. Significant factors leading to the employee's success were a failure on the employer's part to take time to properly understand the reasons for the employee"s request, a failure to properly investigate whether the request could be accommodated, and a failure by the employer to reach its decision fairly on the merits.

But the case law also points to difficulties in the legislation.

As the President of the Human Rights and Equal Opportunity Commission, former Federal Court judge John Von Doussa has said, indirect discrimination has invariably been easier to establish than direct discrimination on the grounds of family responsibilities, clearly because it is so much more difficult to establish that the person was intentionally discriminated against because of their family responsibilities.

This area of jurisprudence needs further development. For example in considering the judgement in the Escobar case, the President has observed:

"The finding of direct discrimination once again is problematic. There is confusion in the judgment about the inter-relationship between the definition of family responsibilities and the provisions relating to discrimination on that ground,18 and the comparator is not identified."

Orders made

The outcome of these cases was not insignificant for each of the employers. For example, in the Federal Magistrates' court matters, in Rispoli $10,000 in damages for non economic loss were awarded, and the employer was ordered to give a written apology.

In Song a reinstatement order was made returning her to full-time work with orders for the payment of lost wages in the meantime and $10,000 for hurt and distress.19

In Escobar there was a monetary award for economic and non-economic losses totalling $7,325. In Mayer the total award was $39,294 including $5,000 for distress. In Evans the total award was almost $54,500 including $25,000 for non-economic loss as the employer's treatment of the applicant caused her to suffer clinical depression for some months.

My Commission has argued that there are significant resonances between the two jurisdictions-of anti discrimination law and industrial law- in the AIRC Family Provisions Test Case, in which we are an intervenor.

Certainly we are saying in this test case that the access to part time work on return from mat leave is sufficiently embedded in anti-discrimination law that the industrial jurisdiction could now legitimately recognise these developments and regularise the position.

I am hopeful that the industrial jurisdiction can mirror and regularise the developments in the anti-discrimination jurisdiction. The two jurisdictions after all, work along parallel tracks in many ways. Each jurisdiction can assist in the development of an Australian workplace that allows Australians to both work and reproduce.

One of the significant limitations of the federal anti-discrimination jurisdiction in this challenge is that, as you may have noticed, it generally assists only women.

While the family responsibilities provisions of the Act relate equally to men and women, those provisions are limited only to discrimination that results in the dismissal of the employee.

In many cases neither dismissal nor a broadly construed constructive dismissal can be argued.

Rather most of the successful cases have been argued as sex or pregnancy discrimination. The industrial jurisdiction is not bound by these limitations and can include men as well as women in any individual or test case matters it deals with. I would commend this way forward to industrial practitioners.

Essentially the law is a vital but slow way of achieving gender equality. In conjunction with a determination by employers to avoid breaches of the law, it becomes an even more powerful tool for equality.

And the Commission is here to help deliver that equality, working with employers and unions as well as the general community to do so.

Thank you.

Endnotes

  1. (2002) EOC 93-227; [2002] FCA 939.
  2. [2003] FMCA 160.
  3. (2002) EOC 93-194; [2002] FMCA 31.
  4. [2002] FMCA 122, digest of decision appears at (2002) EOC 93-229.
  5. [2003] FMCA 209.
  6. [2003] FMCA 375.
  7. [2003] FMCA 584.
  8. See SDA, ss 5, 6 and 7
  9. See SDA, ss7A and 14(3A).
  10. See SDA, ss 5(1), 6(1), 7(1) and 7A.
  11. See SDA, ss 5(2), 6(2) and 7(2).
  12. See SDA, s 7B.
  13. [2003] FMCA 375.
  14. See paragraph 6.17.10, which does not appear in the reported version of this decision.
  15. But if evidence is needed, see the statistics referred to in Evans at [105].
  16. See s 7B (2) of the SDA. This provision was inserted by the Sex Discrimination Amendment Act 1995 (Cth) which also, inter alia, inserted s7C and amended the definitions of indirect discrimination. In his second reading speech, the Attorney General indicated that those reforms were introduced because "the indirect discrimination provisions of the Act...have proven complicated and difficult to apply in practice and...have been criticised for being overly technical, legalistic and complex" (Hansard (House of Representatives), 28 June 1995 at 2460).
  17. For example, see Evans at [105].
  18. See at [34].
  19. Song was appealed, but settled on a confidential basis prior to the Full Court"s decision being handed down.

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