AHRI National Convention and Exhibition
Sex Discrimination
CHECK AGAINST DELIVERY
Good morning and thank you to the Australian Human Resource Institute for inviting me to speak at this National Convention. I am delighted to be joined by Vice Admiral Ray Griggs, Vice Chief of the Defence Force, someone with whom I have worked for several years – a colleague who is a strong agent of change leading many of the cultural change initiatives within Defence. The Vice Chief’s leadership on diversity, particularly gender diversity, has been inspiring to observe and is resulting in a more capable, adaptable and inclusive military - one of which all Australians can be proud.
I also want to acknowledge the traditional owners of the lands we are meeting on today, the Wurundjeri people of the Kulin Nation and pay my respects to their elders past and present.
Today I will talk about two issues that sit at the very heart of women’s workforce participation – firstly, the national review into pregnancy, parental leave and return to work discrimination and secondly, sexual harassment.
In June 2013, I was asked on behalf of the AHRC to conduct a National Review to identify the prevalence, nature and consequences of discrimination related to pregnancy, parental leave and return to work after parental leave, and to identify leading practices.
I was keen to undertake this review for a number of reasons. As Australia’s Sex Discrimination Commissioner and a parent of two children, I believe that caring is one of the most important roles any of us undertakes - it’s the ultimate expression of our humanity.
I also strongly believe that caring and work should not be offered up as opposite ends of one hard choice.
The issue of pregnancy, parental leave and return to work discrimination sits at the very heart of women’s workforce participation.
This National Review was never just an academic exercise.
In 1996, the issue of managing pregnancy and return to work presented as a very real business issue for me. At that time, I was a partner in a law firm, managing a talented team of eight lawyers, a team I had built up over several years. I had a day that started like any other. That afternoon, two of my lawyers came to tell me the happy news about their pregnancy. When the third lawyer came to tell me about her pregnancy the very next day, I had to share my own news - I was pregnant too. So, yes we had half our legal team, yes fifty per cent of our legal capacity, out on parental leave at exactly the same time!
The question for me was how would I meet the needs of the organisation whilst meeting my obligations to my team and making sure they all returned? It couldn’t be a choice between the business and my pregnant employees - both were vital to our continuing success.
They say ‘necessity is the mother of invention’ and not wanting to lose either, I took a business proposal, built on workplace flexibility and individual responsibility, to upper management. As they were forward-thinking individuals, it was adopted. And so we set about redesigning our work practices, to include for instance, options to work remotely from home, job sharing and the implementation of effective flexible work arrangements. With everyone on board, the team went on to even greater success. And of course we had four beautiful babies with us!
What I learned was that well designed flexible workplace practices can accommodate the caring roles of staff and deliver strong organisational outcomes at the same time. I also learned that supporting women during their child bearing years creates strong employee loyalty like nothing else.
My story had a happy and constructive outcome. And there are many stories like mine. But I am the first to admit that this is not representative of all workplaces. And I will return to this point shortly.
The National Review is informed by a rigorous evidence base including a national prevalence survey and widespread consultation with employers and employees in every state and territory.
I would like to acknowledge and thank the Australian Human Resources Institute and its members for the contribution you made to the National Review. AHRI issued a survey that asked members for their views and experiences on managing pregnancy, parental leave and return to work in the workplace to inform their submission to the National Review. Over 740 AHRI members’ responded to the survey. That is huge! Your input contributed significantly to the National Review’s understanding of these issues - thank you so much to everyone that took the time to participate in these processes and thank you to AHRI for the time and effort coordinating and collating this.
One of the first things I did was establish a Reference Group with key representatives of business and industry, unions, community organisations and academics to help shape the methodology.
We conducted the first nationally representative survey of mother’s experiences of discrimination in the workplace related to pregnancy, parental leave and return to work.
We now stand with only a handful of other countries that have this depth of analysis.
In addition, we conducted, what we believe is the first of its kind, a prevalence survey of the experiences of fathers and partners. This survey provides an important snapshot of what it’s like for these carers who take time out of the workforce to care for a child on their return to work.
Alarmingly, what these Surveys revealed is that discrimination not only exists, it is widespread.
I thought I’d spend just a few minutes talking about some of the most surprising findings from the prevalence data - things I didn’t expect to find. These findings were all the more startling given that there is a strong legal framework in place aimed at preventing discrimination based on pregnancy and return to work.
One in two (49%) mothers reported experiencing discrimination in the workplace at some point during pregnancy, parental leave or on return to work.[1] They were mothers from all walks of life. No sector or industry was immune.
The survey reported that the discrimination took many forms - from negative and demeaning attitudes right through to job loss.
What was most surprising and indeed distressing was that discriminatory attitudes and behaviours were not just perpetrated by men. Women too, many of them with children, were often guilty of these practices. Relating her experience, one woman told me,
My direct manager (female)...told me that I needed to ‘decide what I wanted - a family or a senior role in the company’. [She said] ‘You can't have both.’[2]
Our research is clear, discrimination directly impacts on women’s workforce retention. Let me give you some facts and figures:
- Nearly a third of mothers (32%) who experienced discrimination at some point either looked for another job or resigned.[3]
- Mothers who experienced discrimination during pregnancy were less likely to return to their job or return to the workforce at all. One in five (18%) mothers indicated that they were made redundant / restructured / dismissed, or that their contract was not renewed because of their pregnancy, when they requested or took parental leave, or when they returned to work.[4]
- 22% of women who were discriminated against did not return to the workforce compared to 14% who were not discriminated against.[5]
The survey found that the large majority of mothers (91%) who experienced discrimination did not make a formal complaint.[6] They suffered in silence. Many feared victimisation and being labelled a troublemaker.
Turning to the fathers and partners survey, the survey showed that even those who take very short periods of parental leave (under 1 month and usually just 2 weeks) also face discrimination.
Over a quarter (27%) of fathers and partners reported experiencing similar discrimination to mothers, when requesting or taking parental leave or when they returned to work.[7]
The discriminatory attitudes and behaviours had a significant impact on their mental health, family, finances and career and job opportunities.
Like mothers, a substantial proportion of fathers and partners, 23%, who reported experiencing discrimination looked for another job a further 10% resigned.[8]
Another unexpected finding from the Surveys was that the rates of pregnancy and return to work discrimination were higher in larger organisations. It appears then, that large organisations can have the best policies in the world but if they are not widely publicised and properly implemented, discrimination will still occur. It also seems that small businesses can be more agile and innovative in their pregnancy and return to work policies, possibly having deeper relationships with their employees as a result of size. Often small businesses operate as an extended family.
Before I speak about the issues identified by employers and some of their leading practices, let me turn to the stories of men and women affected by discrimination. I met with mothers and fathers from all walks of life – from factory floors to the highest echelons of the business, law and medical worlds.
Too often I heard distressing stories of pregnant women and parents being bullied, demeaned and marginalised in their workplace often by other work colleagues or their manager. I listened to one woman’s experience - she told me that when heavily pregnant, her manager refused to provide her with a stool to sit on while working, or with extra toilet breaks. These issues go to the heart of dignity and respect.
It was dispiriting to hear from talented people who were pressured to accept a reduction in their salary or their position and to forget any prospect of career progression when negotiating to return to work flexibly. In the words of one woman:
While I was on maternity leave...[my boss] told me that there had been a business decision that I was no longer suitable for the role I was in previously (they had offered it full-time to my maternity leave [replacement]). [My boss] said, don’t worry I have managed to secure you a position in another department – but it was a $20,000 pay difference.[9]
Not surprisingly, the experiences of discrimination had considerable short and long term negative impacts. In the words of one woman and I quote:
I would describe my experiences during pregnancy, whilst on parental leave and on returning to work as harrowing, disappointing and probably the worst experience of my life. I spent much of my pregnancy feeling anxious (and sometimes in tears), despite being thrilled about the pregnancy and being physically well. I felt powerless, vulnerable and fearful about my job security and couldn’t understand why I was being treated so badly, especially given my unquestionable commitment to the organisation over the previous seven years.[10]
In some of the most distressing cases I heard, pregnant women under severe stress from discrimination in the workplace either suffered miscarriage or had difficulties continuing breastfeeding.
“I was told I was a bad mother and a bad employee for working while having a young family”
“At the end of it all I was left with no job, on the brink of losing my home, dealing with a miscarriage. I lost all my friends at work, and was left just utterly broken. “[11]
All of these voices and many hundreds more, scattered throughout the report, bring to the fore some of the lived experiences of pregnant women and those returning to work. These voices teach us that discrimination is a real and pervasive issue - that its impact can be devastating - and that discrimination in this area is a major barrier to the full and equal participation of parents, in particular, mothers, in Australia’s workforce.
But this issue is complex and has many faces. The National Review heard much about the practical challenges faced by employers in managing pregnancy and return to work.
Employers identified issues such as lack of access to clear, easily accessible information and advice on pregnancy rights and obligations – which prevented them from fully understanding and discharging their obligations. They talked about the limited availability and affordability of childcare as a determining factor for parents returning to work.
They raised practical concerns including:
- Balancing the competing demands of the business with the needs of a pregnant employee or employees returning to work requesting flexible arrangements
- Management skills gap
- Finding and training replacement employees while someone is on parental leave
- Keeping in touch with parents on parental leave, and operating without certainty about when that employee may return.
These challenges are summed up in the words of one employer:
The first thing is that you try to be very excited on behalf of the person who’s telling you [that they are pregnant]. Secretly what you’re [thinking] is how the hell am I going to replace this person for the next year? With the best intentions in the world not to discriminate in any way, how can you avoid being concerned: how am I going to run this company and meet my objectives in the next year or two?[12]
And another employer stated:
You’re in a very tough environment, a very competitive environment, where you’re absolutely having a hell of a lot of pressure coming down on you globally on costs. So it’s a balancing act and I think it’s what creates difficulty.[13]
Having heard of the challenges, some of the rewarding moments of the National Review included meeting with employers who have developed and implemented innovative and successful strategies to overcome these hurdles, with ultimate benefits for both the organisation and the individual. And importantly, these strategies are embedded in the organisation, so they will be sustained once the founders of the organisation, the CEO or leaders move on.
It was these employers who really understood the case for change – that gender diversity creates better performing organisations – that retaining skilled employees requires organisations to support people across the life cycle.
This leads me to some of the leading practices and strategies we came across and which are highlighted in the report.
Each organisation will have a unique capacity to manage pregnancy, parental leave and return to work. Many of the strategies outlined in the report are not costly – they just require a change in attitude – they require that everyone is treated with dignity.
At its simplest, smart organisations start with an open conversation with their pregnant employees and those returning from parental leave about needs, plans and expectations. I heard time and time again that open communication and reciprocity sits at the very core of successfully managing these issues in the workplace.
Let me just share just one example of an innovative and effective workplace practice with you because the Vice Chief of the Defence Force, Ray Griggs is going to provide some more great examples in just a moment.
The story I would like to share with you is the experience of a small mechanics workshop of about 20 people. This was a heavily male dominated workplace with lots of young male apprentices. The manager of the workshop floor, a woman, had just had a baby and taken a short period of parental leave. She wanted to be able to breastfeed on return to work. The owners of the business did not have a dedicated breastfeeding room but told her that they would convert an un-used room into a breastfeeding room for her. But she said ‘no, I want to be able to run the workshop floor and breastfeed at the same time’. So the owners decided to hold an information session on breastfeeding for staff. The homework for the apprentices was to go away and talk to mum about their breastfeeding experience. They ran the session and then told the staff that they could ask the workshop manager any questions about breastfeeding for a week and then it was ‘business as usual’. And it worked. This is a perfect example about how when workplaces can think outside the box they create a workplace environment that meets the needs of their employees and results in an effective and loyal workplace.
So where to from here? The National Review makes a small number of high impact recommendations.
They address four critical areas:
Firstly, the gap in understanding rights and obligations in regards to pregnant workers and parental leavers. This requires the dissemination of clear, comprehensive and consistent information about employer obligations, employee rights and leading practices and strategies. Through the national Paid Parental Leave (PPL) scheme we can now reach the vast majority of pregnant working women and every employer that registers for the government scheme – so it provides a mechanism through which information can be automatically disseminated to working mothers, fathers and employers. Producing a pregnancy and return to work resource, and utilising the national PPL and other mechanisms to disseminate it will go a long way to help drive change and build productive workplaces.
Secondly, organisational cultures that give rise to harmful stereotypes, practices and behaviours about pregnant women and working parents must be changed.
Such change will require strong and visible leadership. It will also require overturning policies and practices that perpetuate harmful stereotypes and mythologies about the ideal worker.
Thirdly, while the legal framework in Australia is extensive, some key reforms will strengthen protection against discrimination in the workplace and provide greater clarity for employers on their obligations. Amongst these we recommend 1. a strengthening of the Sex Discrimination Act particularly to provide stronger protection for individuals with family responsibilities, 2. in the Work Health and Safety area the development of guidance material for employers on the requirements of pregnant women, IVF and miscarriage to be developed by Safe Work Australia; and 3. clarifying the provisions under the NES of the Fair Work Act to ensure employees can use personal leave for prenatal appointments, and that they are allowed breaks for breastfeeding.
Finally, ongoing monitoring, evaluation and research is essential to shape effective action. We now have solid benchmark data which should be updated every 4 years to assess progress.
I have to say that as I sat in consultation after consultation listening to the stories, I resolved that I would never be that manager who tells her pregnant worker that she must choose between having a family and her career. Indeed, I would not want to work in an organisation that allows such attitudes and behaviours to persist. As HR professionals you can all play a critical role in ensuring good policies are implemented and help to build a culture that supports pregnant employees and working parents to both work and care. I urge you to make this a priority.
Let me now close by shifting to another equally critical issue to women’s workforce participation that I have been working on and that is sexual harassment.
Workplace sexual harassment is a deeply personal issue for me, as it is for many women and men in Australia.
When we launched the Know Where the Line Is awareness raising strategy, I told my story of being sexually harassed when I was a young lawyer starting out in my career. It was the first time I had ever told my story in public. I didn’t share my own experience because it was more important than anyone else’s; I shared it because the features that underpin my story underpin all stories of sexual harassment. That is – a power imbalance, fear, embarrassment and shame, an inability to make a formal complaint and a positive outcome through the intervention of bystanders.
Because this is such an important issue for Australians – and Australian businesses – I’d like to take a few moments to talk to you about our new national strategy that was launched at the end of May in partnership with the Australian Chamber of Commerce and Industry and the Australian Council of Trade Union. We came together to develop this strategy because all three of us recognise the impact of sexual harassment, not only on individuals but on businesses themselves and we’re determined to work together to create safer and more equitable workplaces in Australia.
This strategy is based on the Commission’s research which shows that the overall prevalence of workplace sexual harassment has not decreased significantly despite our best efforts – just over 1 in 5 people experienced workplace sexual harassment in the last five years.[14]
However, what this research also showed is that very few people actually recognise sexual harassment when they experience or witness it.
In fact, almost 1 in 5 people who said they hadn’t been sexually harassed based on the legal definition of harassment then went on to describe experiencing behaviours that were likely to constitute harassment under the Sex Discrimination Act.[15]
The Know Where the Line Is strategy is designed to raise awareness about what workplace sexual harassment looks like in 2014 through a suite of posters, videos and infographics that are on the strategy’s website.
The posters ask people to think about where the line is...and what crosses it. Does saying to a colleague ‘how are you...sexy?’ cross the line? Does asking someone how their weekend was – and whether they got any? Does joking around about how one of the office staff is ‘great with her hands...if you know what I mean’?
Importantly, the strategy is also particularly targeted at bystanders by encouraging people to ‘See. Talk. Support’ if they know that sexual harassment is happening in their workplace. The Commission’s research shows that 82% of people took some sort of bystander action if they directly witnessed sexual harassment at work and almost half of sexual harassment stops after a formal complaint is made.[16] Supporting a colleague who is experiencing harassment can assist them to take this step and feel safe at work again.
As part of this strategy we’ve developed a comprehensive resource for employers to support them in ending workplace sexual harassment, and a practical information sheet for employees.
This strategy is designed to complement existing harassment prevention and response efforts being undertaken by workplaces around the country. The key messages – know where the line is and encouraging bystanders to see, talk and support – can be incorporated into policies and procedures around workplace sexual harassment, and the suite of audio visual resources can be utilised in workplace.
To download any of the posters, videos or other resources we’ve developed for employers and employees, you can visit our website, knowtheline.com.au.
I’ve been really pleased by the support of businesses and unions around the country to get on board with our Know Where the Line Is strategy, as it’s imperative that we all work together if we’re going to end sexual harassment in workplaces.
Now is the time for bold and innovative thinking and for collective commitment to create workplaces where people can balance work and care, in environments that are free from sexual harassment.
Such steps are critical to increasing women’s participation and engagement in paid work.
It is up to all of us then – men and women in workplaces around Australia – to play our part in transitioning to a non-discriminatory and safe future – one where gender equality lies at the heart.
[1] Australian Human Rights Commission, Supporting Working Parents: Pregnancy and Return to Work National Review Report (2014), p 26.
[2] Individual submission no. 317.
[3] Australian Human Rights Commission, Supporting Working Parents: Pregnancy and Return to Work National Review Report (2014), p 33.
[4] Australian Human Rights Commission, Supporting Working Parents: Pregnancy and Return to Work National Review Report (2014), p 27.
[5] Australian Human Rights Commission, Supporting Working Parents: Pregnancy and Return to Work National Review Report (2014), p 33.
[6] Australian Human Rights Commission, Supporting Working Parents: Pregnancy and Return to Work National Review Report (2014), p 33.
[7] Australian Human Rights Commission, Supporting Working Parents: Pregnancy and Return to Work National Review Report (2014), p 48.
[8] Australian Human Rights Commission, Supporting Working Parents: Pregnancy and Return to Work National Review Report (2014), p 53.
[9] Individual submissions no. 30.
[10] Individual submission no. 315.
[11] Individual submission no. 299.
[12] Consultation 8E (Employers).
[13] Consultation 8E (Employers).
[14] Australian Human Rights Commission, Working without fear: Results of the 2012 sexual harassment national telephone survey (2012), p 4. At https://www.humanrights.gov.au/working-without-fear-results-sexual-harassment-national-telephone-survey-2012 (viewed 20 November 2013).
[15] Australian Human Rights Commission, Working without fear: Results of the 2012 sexual harassment national telephone survey (2012), p 4. At https://www.humanrights.gov.au/working-without-fear-results-sexual-harassment-national-telephone-survey-2012 (viewed 20 November 2013).
[16] Australian Human Rights Commission, Working without fear: Results of the 2012 sexual harassment national telephone survey (2012) pp 5 and 52. At https://www.humanrights.gov.au/working-without-fear-results-sexual-harassment-national-telephone-survey-2012 (viewed 20 November 2013).
