Obligations under the Sex
Discrimination Act 1984 (Cth)
Speech to the
NSW Department of Transport by Commissioner Pru Goward, Federal Sex Discrimination
Commissioner. 5 March 2001.
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Thank you for inviting me to talk to you today about the Sex Discrimination Act 1984 (Cth). As Federal Sex Discrimination Commissioner I am responsible for administrating the Act, so as you can imagine I am always encouraged and pleased when I receive invitations to talk to organisations about their obligations under the Sex Discrimination Act 1984 (Cth).
- When an organisation, such as the Department of Transport, is genuinely interested in, and committed to fulfilling their obligations under the Sex Discrimination Act 1984 (Cth), we become a step closer to ensuring that the objectives of the Act are met.
- Before I discuss the obligations set out by the Sex Discrimination Act 1984 (Cth), it may be therefore be useful for me to briefly outline the objectives of the Act and my responsibilities as Federal Sex Discrimination Commissioner.
Role as Federal Sex Discrimination Commissioner
- As Federal Sex Discrimination Commissioner, I am responsible for the administration of the Act, although I am not responsible for handling complaints made under the Act. That is the role of the President. My advocacy role requires me to be distant from this process. I am responsible for any Commission intervention in any court cases involving the Sex Discrimination Act 1984 (Cth). Recently you may recall, the Commission decided to intervene in the IVF case before the High Court and I was responsible for managing the case.
- A new and growing representational role for the three Commissioners is the role of Amicus Curiae, or Friend of the Court. This Amicus role enables me, and therefore the Commission, to assist the Federal Court or Federal Magistrates Court when the orders may significantly affect the human rights of others who are not part to the proceedings, or when the proceedings have significance for the administration of the relevant Act. Special circumstances and public interest may also be a reason for seeking to become Amicus.
- A large part of my role as Federal Sex Discrimination Commissioner is concerned with promoting greater equality between women and men and ensuring that all members of the community are provided with equal opportunities to reach their full potential. A major way in which I fulfil this responsibility is through educating Australians about their rights and responsibilities under the Sex Discrimination Act 1984 (Cth) - in having me here today, you are not only learning about your obligations under the Sex Discrimination Act, but you are also ensuring that I do my job!
Objectives of Sex Discrimination Act
- The Sex Discrimination
Act 1984 is a Federal Act. Its objectives are to:
- promote equality
between men and women
- Eliminate
discrimination on the basis of sex, marital status or pregnancy
and with respect to dismissals, family responsibilities and
- Eliminate sexual harassment at work, in educational institutions, in the provision of goods and services, in the provision of accommodation and the administration of federal programs.
- promote equality
between men and women
- The Sex Discrimination Act fulfils these objectives by making discrimination based on sex, marital status, pregnancy and potential pregnancy against the law.
- It also prohibits sexual harassment, dismissal on the basis of family responsibilities and victimisation of a person or people who have made a complaint under the Act.
- The Act sets out what type of discrimination is unlawful and where it is prohibited from occurring - It is unlawful to discriminate on the grounds of sex in most areas of public life including employment, education, in the provision of goods, services and facilities, accommodation, housing and in the administration of Commonwealth laws and programs.
- From complaints
made under the Sex Discrimination Act it is clear that unfortunately
sex discrimination permeates many areas of public life. The most common
include:
- employment - getting a job, equal pay, training promotion, fair conditions of employment, being dismissed.
- Education - at school, TAFE, university, private training providers.
- Goods, services or facilities - when buying something, applying for a loan or credit, seeking assistance from government departments, lawyers, doctors and hospitals or going to restaurants, shops or entertainment venues.
- Ensuring that your obligations under the Act are met, therefore involves ensuring that certain actions and behaviours do not occur in your workplace and in the provision of your goods and services, while ensuring that other practices do.
Obligation to Eliminate Sex Discrimination
- Despite the emphasis on the undeniable progress of the women in society over the past decades, particularly in the workforce, sex discrimination is still a common experience for a number of women in many areas of public life.
- Discrimination based on sex was the most common ground for complaints being lodged under the Sex Discrimination Act 1984 (Cth) in 2000-2001, with a significant proportion, 81% occurring in the workforce.
- According to the Sex Discrimination Act 1984 (Cth), if sex discrimination is to be eliminated, there is an obligation to ensure that individuals are not treated less favourably than other individuals because of their sex, marital status, pregnancy, ability to become pregnant and, in the limited situation of workplace dismissals, family responsibilities.
- This less favourable treatment does not have to be directly discriminatory to amount to a breach of the Act.
- A rule, policy, practice or procedure which imposes a requirement, that at face value appears to treat everyone the same, but actually disadvantages certain individuals because of their sex, marital status, pregnancy or potential pregnancy, may amount to sex discrimination.
- When this occurs it is known as indirect sex discrimination and is also unlawful under the Sex Discrimination Act.
- The difference between direct and indirect sex discrimination is easiest understood when examples are given:
- Direct Discrimination: An employer refuses to allow an employee to attend a work based training because she is pregnant; or an employer forces an employee to resign because she is suffering morning sickness when pregnant.
- Indirect Discrimination: An employer introduces a policy that employees who have worked continuously for the company for 20 years will receive a wage increase. This may disadvantage women as they are more likely to take breaks from their working lives to have children and are therefore less likely to have worked continuously in one company for 20 years.
- While many of the complaints of sex discrimination made under the Act settle in conciliation, several matters have proceeded to court hearings. Decisions in these cases have provided us with legal principles which clarify and expand the rights and therefore obligations outlined in the Sex Discrimination Act 1984 (Cth).
- Recent decades have seen women make deep inroads into areas of public life that were previously off limits. As they make inroads into positions and sectors of the workforce that were once closed to them, they still bear the greater responsibility for raising families. It should be no surprise therefore, that work and family issues have been the central focus of a number of these recent cases as women continually try to juggle work and family commitments.
- At this point in time, discrimination on the ground of family responsibilities is more limited in its scope than discrimination based on sex, martial status, pregnancy or potential pregnancy. Under the Sex Discrimination Act, discrimination on this ground is only against the law when someone has been dismissed from their employment as a result of family responsibilities.
- The decision in Hickie v Hunt and Hunt solicitors, handed down by HREOC in March 1998, has proven to be one of the most significant cases dealing with discrimination on the basis of family responsibilities in the employment area.
- At the time of Ms Hickie's appointment as a partner in a law firm she was pregnant, a fact known to the firm. She commenced maternity leave shortly after this appointment.
- During her absence, virtually all plaintiff work was transferred to another partner. By the time she returned to work, her practice had been reduced in its variety and quantity.
- After a performance appraisal it was recommended that her partnership status not be renewed. She consequently resigned.
- Ms Hickie claimed discrimination and victimisation. The Hearing Commissioner found no direct discrimination with regard to the arrangements established for her maternity leave or in the decision to remove her plaintiff practice. However, the decision to remove Ms Hickie's practice and the non-renewal of her contracts were found to be acts of indirect discrimination.
- Ms Hickie was awarded $95,000 which comprised compensation for loss of earnings for first 12 months after the termination of her contract, future loss of earnings and damages for non-economic loss.
- The case raised a number of important issues:
- The necessity for employers to have clearly defined maternity leave and part-time work policies;
- The need for employers to ensure that employees on maternity leave are not subjected to detriment while they are on maternity leave;
- The need for adequate mentoring of, and accommodation for part-time workers.
- Pregnancy, parental status and family responsibility combined to make up 18% of discrimination complaints received by HREOC in the 2000-2001 period. Highlighting it as an area of workplace practice and management that needs further attention.
Obligation to ensure that sexual harassment does not occur
- The Sex Discrimination Act 1984 (Cth) makes sexual harassment unlawful in the workplace, registered organisations, employment agencies, educational institutions, clubs, in the provision of goods and services, in the administration of Commonwealth laws and programs and in the provision of accommodation.
- Under the Act there is therefore an obligation to ensure that sexual harassment does not occur in these environments.
- With regard to the workplace, the Act explicitly covers employers, employees, commission agents contract workers and general workplace participants.
What is sexual harassment:
- The Sex Discrimination Act 1984 (Cth) defines sexual harassment as any unwanted or uninvited sexual behaviour that is offensive, embarrassing, intimidating or humiliating. It has nothing to do with mutual attraction or friendship.
- Sexual harassment can take many different forms - it can be obvious, indirect or verbal.
- It includes behaviour
which creates a sexually hostile or intimidating environment. For example:
- unwelcome
touching
- staring or
leering
- suggestive
comments or jokes
- sexually explicit
posters or pictures
- unwanted
invitations to go out
- unwelcome
requests for sex
- unnecessary
familiarity such as deliberately brushing up against you
- intrusive
questions about your private life
- insults or taunts based on your sex
- unwelcome
touching
- More and more we are hearing anecdotally, and through several high profile cases, that sexual harassment is taking the form of emails whether it be in the text of messages, sexually inappropriate attachments or screen savers.
- This type of sexual harassment is only going to increase and take new 'creative' forms as, according to a very recent study, one in three Australians believe that swapping stories of sexual exploits via work email is acceptable. (SurfControl Australia survey, Jan 2002).
- Hearings and Case law about sexual harassment are helpful in understanding what situations will be considered unlawful under the Sex Discrimination Act:
- In Alridge v Booth (1988) Justice Spender of the Federal Court, shed light onto what is meant by 'unwelcome'. He defined it as an advance, request or conduct which was not solicited or invited by the employee, and the employee regarded the conduct as undesirable or offensive.
- Whether the behaviour was unwelcome is a subjective question and will depend on the response of the particular individual alleging sexual harassment.
- It is irrelevant that the behaviour may not offend others or has been an accepted feature of the work environment in the past. The rule that applies to sexual harassment is a general principle of tort law - you take your victim as you find them.
- Sexual harassment in the 'Workplace' extends from the place of work to social functions and conferences, seminars etc conducted in relation to work.
- For example, a sexual harassment claim brought against a south coast golf club involved an incident at the end of year staff and directors' Christmas party. While dancing, the director repeatedly rubbed his genitals against an employee's leg. It turned out to be an expensive session of 'dirty dancing' with the court ordering the club to pay over $15,000 damages plus costs.
- A working environment or workplace that has a culture that is sexually permeated or hostile will amount to unlawful sexual harassment. An employer can be held directly liable for either harassment or discrimination where a person is required to work in an `unsought sexually permeated environment' because of, for example, the display of obscene and pornographic material, or a predominance of sexual banter and offensive jokes and innuendo.
- Unfortunately all too often it is women who are new to the workforce who face sexual harassment. Educating young women about their rights and responsibilities reduces their vulnerability to this kind of abuse of power at work.
- In outlining what is lawful and unlawful behaviour the Sex Discrimination Act establishes a code of conduct which, if followed, will see Australia becoming a society in which women's experience is one of free choice, equality and freedom from harassment and discrimination.
- Having these obligations in place alone is not enough. The Act has been in place since 1984, yet it is 2002 and sex discrimination and sexual harassment are still occurring.
- For the obligations under the Sex Discrimination Act 1984 (Cth) to be met, there needs to be a genuine commitment to ensuring that the unlawful conduct, outlined in the Act does not occur in the our workplaces, schools, clubs, laws or any area of our public lives. It is only with this commitment that the Sex Discrimination Act 1984 (Cth) will be effective.
- This is not to suggest that the Act alone can eliminate discrimination based on sex or sexual harassment from occurring in society. Cultural, attitudinal and technical change, backed up by other pieces of legislation and public policy need to be in place if these problems are to be adequately addressed.
- The Sex Discrimination Act 1984 (Cth) however, certainly has a part to play in making Australia a society in which there is a greater equality between women and men and its educative and enforcement roles cannot be underestimated.
Last updated 14 June 2002.
