Winds of Change: Indirect Discrimination and University Culture
Speech by Susan Halliday, Sex Discrimination Commissioner to the Women and the Culture of Universities International Conference, Sydney, 15 July 1998.
It is nearly fifteen years since the introduction of the Sex Discrimination Act - legislation enacted in Australia to meet our international obligations under the Convention on the Elimination of Discrimination against Women. At the same time too, we have seen the introduction of legislation (The Affirmative Action Act) designed to commit organisations of 100 or more employees to determining measures and programs to ensure that women are afforded equal opportunity. Why then, does current research indicate that there are still profound difficulties for women in achieving equality and equity within the university culture?
From the outset, I must state that I am impressed with the level of research which has considered the barriers faced by women in the tertiary environment, and I am particularly grateful to the work of Dr Clare Burton whose report Gender Equity in Australian University Staffing has been invaluable in the preparation of this paper. The range of research sources contained in the report have resulted in a comprehensive overview of the barriers faced by women in their quest for gender equity.
The focus of this paper is primarily on women as academics. I wish however, to fully acknowledge that the concerns of women working as general staff within universities should not be overlooked and that many of their concerns are as pressing if not more pressing. Similarly, it would be naive not to consider the problems faced by women as students. In seeking solutions to the discrimination that exists within university culture, I believe it would be useful to forge coalitions among both academic and general staff (and students where appropriate) in seeking longer term cultural change that will ultimately effect better outcomes for all women regardless of their status.
As Sex Discrimination Commissioner, it is my responsibility to manage and conciliate complaints brought under the Sex Discrimination Act. For this reason, I believe what I can most usefully contribute to today's proceedings is a brief analysis of a case scenario based on concerns received by the Commission that relate to a tertiary environment. It is important to note that an assessment of complaints statistics to the Human Rights and Equal Opportunity Commission reveals that very few complaints of sex discrimination are made by women employed within universities. Anecdotally however, there is a wealth of information on which to draw. Lack of formal complaints may be explained by:
- Women fear complaining because they do not want to "make waves".
- Women do not have confidence that pursuing an individual complaint will result in the systemic changes they believe are necessary in order to overcome the discrimination.
- There may be fewer cases of overt and direct sex discrimination, which signal that inequity is due more to "hidden" discrimination, known as indirect - the cause of which is often structural requiring a change in organisational culture and practice.
The Sex Discrimination Act 1984
The Sex Discrimination Act prohibits direct and indirect discrimination on the grounds of sex, marital status, pregnancy and potential pregnancy (Division 1, Part 2):
- in the terms or conditions on which employment is offered;
- in the terms or conditions of employment afforded the employee;
- by denying the employee access to opportunities for promotion, transfer, training or any other benefits associated with employment;
- by subjecting the employee to any other detriment.
Definitions
Direct Sex Discrimination
Direct sex discrimination occurs where a person of one sex is treated
less favourably than a person of the opposite sex in circumstances that
are not materially different (s5(1)). For example, if a woman is sacked
because she advises her employer that she is pregnant or is denied access
to a promotion or relocation because of gender, this would be "direct"
sex discrimination.
Indirect Sex Discrimination
Indirect sex discrimination occurs where a condition, requirement
or practice is imposed that has the effect of disadvantaging people of
one sex in relation to the other, and this is not reasonable in the circumstances
(s.5(2)). For example, a policy that intended to give a wage increase
to those employees who had worked continuously for the company for 10
years would indirectly discriminate against women who had interrupted
continuous service to have children. It may also have direct and indirect
age discrimination possibilities.
Matters to be taken into account in determining whether a condition, requirement or practice that may be indirectly discriminatory is reasonable include:
- the nature and extent of the disadvantage;
- the feasibility of overcoming or mitigating the disadvantage; and
- whether the disadvantage is proportionate to the result sought by the imposition of the condition, requirement or practice.
Consider the following case scenario which illustrates some of the major obstacles facing women today in the tertiary environment. This case study is based purely on anecdotal information and does not correspond to a specific complaint.
Case Study
A woman, Maya is employed by a university on a year to year contract as a tutor with the university. Under her contract, she is not paid over university breaks and is only told her contract is to be renewed a few weeks before term starts. At the same time, Joshua is also employed on a contract basis with similar terms and conditions, except he negotiates pay between sessions.
When first employed Maya is told by a former head of the school that she would not get anywhere if she decides to have children. On contract for three successive years, she applies unsuccessfully on a number of occasions for tenure.
Student feedback consistently indicates that Maya's skills as a teacher are highly prized by her students and she is on a number of administrative committees.
Maya decides to have children and has to take unpaid leave. While on leave she sees an advertisement for a tenured position in her department and is again unsuccessful with her application. The successful applicant is Joshua. The university gives as a reason Maya's insufficient published work and failure to complete a higher degree in contrast to Joshua who has published several papers. They also argue that because of the casual nature of her contract positions alongside her maternity leave, she does not qualify for a tenured position because of her interrupted service.
Maya believes that her lack of success at securing a tenured position later, is due to her sex and the fact she had to devote time to her family responsibilities. She also believes that her valuing of teaching had impacted on her ability to publish work and argues that the university culture fails to equally value her teaching and administrative skills. She also argues that at her most recent interview for a tenured position the panel consisted of men only and that this resulted in bias in the appointment.
What does the case study raise?
Casual Labour
Firstly, women as we know, are more likely to be employed as casual
staff by universities. Increasing concerns about funding are likely to
exacerbate the situation. Sector-wide staffing figures make it clear that
any cost-cutting strategies directed at fixed-term positions held at Lecturer
A and B levels will have more of an impact on women's overall representation
within the sector than on men's. Of all female academics employed within
the sector, 46.1 per cent were, in 1996, on fixed-term contracts at Levels
A and B. The figure for male academics was 27 per cent.
Pay Equity
This casualisation of labour not only impacts on women's earning capacity
in the immediate present, but impacts on their potential income well into
the future and can be seen as leading to serious pay inequity for women
within the academic sphere. In the case of Maya in contrast to Joshua,
her contract position did not allow for paid university breaks or paid
sick leave for example, which forced her to look at other ways of supplementing
her income during session breaks. This in turn, impacted on her ability
to undertake the research necessary for the publication of work or the
completion of a higher degree.
Children or Family
Responsibilities
Another key issue relates to opportunities (and limitations) for women
who have children or family responsibilities. In the above case scenario,
Maya was told at the outset that any decision to have children would result
in her detriment. Clearly, this is outright direct sex discrimination,
but unfortunately has been a common concern for women with family responsibilities
and is not limited only to the university context. At the Commission we
have heard of examples of women being asked at interview how they propose
to combine work and family duties - again directly discriminatory - because
few men, if any, are likely to be asked the same question in the same
circumstances.
Indirect Discrimination
A major consideration in this case scenario and probably as Sex Discrimination
Commissioner what I see as being one of the most serious obstacles for
women across Australia is how to successfully pinpoint and challenge instances
of indirect sex discrimination. In the above example there are several
factors that need to be considered and without extensive case law, it
is impossible to state what the actual findings would be should Maya pursue
a complaint of indirect discrimination. However, important to consider
in the above example is that Maya is specifically advised that one of
the reasons she fails to secure a tenured position is because of her lack
of continuous service. This certainly raises some alarm bells. First,
Maya is employed on a casual basis, and this immediately results in disadvantage
to her on a number of different levels. If statistics show that more women
are employed on a casual basis, then one could consider an argument that
more women than men are unlikely to be able to demonstrate continuous
service. With the additional complication of time off for parental leave
and the fact that women are likely to be the primary carers for children,
it becomes clearly apparent that a requirement for uninterrupted service
in order to qualify for promotion is likely to be discriminatory.
Anti-discrimination laws state that unlawful indirect discrimination occurs where a condition, requirement or practice is imposed that has the effect of disadvantaging a group of people in relation to the other, and this is "not reasonable in the circumstances of the case". It is impossible to state definitively what would be reasonable or unreasonable in any particular case as circumstances will be unique to individual cases.
The notion of reasonableness cannot therefore be discussed other than in general terms, because the individual circumstances of each case will determine the degree of reasonableness. Reasonableness is a question of fact, not of law. Indirect discrimination may not be deliberate, but the burden of proof of determining that the condition or policy is not discriminatory lies with the respondent. That is, once a complainant has shown that indirect discrimination has occurred, it is up to the respondent employer to show that discrimination was reasonable under the circumstances. Reasonableness can thus be thought of as a kind of defence to indirect sex discrimination.
In this case, Maya would need to show that she suffered a sex-based disadvantage as a result of the rule. To support her case she could draw on evidence to show that seniority and continuous service policies are likely to have a disparate impact on women. Once she has shown the disparate impact it will then be up to the respondent/employer to justify the rule's existence and establish that there is not a viable non-discriminatory alternative.
Examples of the type of practices which may constitute indirect discrimination include:
Promotion procedures - procedures which restrict access to promotion of particular classes of staff may be indirectly discriminatory, for example the exclusion of part-time staff, temporary or un-tenured staff from promotion rounds would seem unjustified when women, in particular are concentrated in those employment categories.
Staff development - policies which restrict access to staff development opportunities to full-time or permanent staff or to staff employed at specific levels could also be indirectly discriminatory. The reasonableness of such policies would need to be examined.
Performance pay - policies which only allow access to performance based salary supplementation to particular disciplines or fields of work, where it appears that a substantially higher proportion of men than women would have access to such a scheme suggests that this could be indirectly discriminatory. Denial of access to bonus schemes or special benefits on the basis of pregnancy or marital status could also be discriminatory.
Valuing Skills
The other issue raised by Maya is that of "what is valued?". In essence, she believes her skills as a teacher are overlooked because to achieve promotion, the preferred model of assessment is one that largely considers published work. Although this doesn't relate directly to discrimination law it brings up many challenges in terms of confronting organisational norms and culture which favour men over women. To elaborate on strategies required to confront such norms would be a paper in itself, but nonetheless, it remains a fact that unless as women we can define and gain acceptance for alternative ways of working, we will remain at a disadvantage.
Adequate and appropriate representation
Finally, simple as it sounds, many selection panels still overlook the need to have appropriate representation. This representation should not only be confined to sex, but needs to consider representation of other groups for example, ethnic minority representation. There is little chance of achieving meaningful diversity without it. Representation needs to extend beyond recruitment and selection. Absence of women on key decision making bodies has been the subject of criticism in virtually all reviews and reports investigating the position of women in universities. Without power, effecting change is going to take a lot longer.
Some Solutions
The above case scenario cannot cover the extent to which women can be disadvantaged in tertiary education and employment - but it does raise some of the most critical issues that have come to the attention of the Human Rights and Equal Opportunity Commission. Tackling and overcoming disadvantage and discrimination requires a multi-faceted approach and some excellent suggesions for action are included in Burton's book. In summary, it is important to point out the following:
- Australia has
ratified international conventions dealing with discrimination at work.
The most important of these for women is the Convention on the Elimination
of Discrimination Against Women - ratified in 1983. The Sex Discrimination
Act was enacted by the Federal Gov in 1984 in pursuance of its obligations
under this Convention.
- While sex discrimination
legislation is complaint based and relies on an individual taking a
complaint after an alleged act of discrimination has occurred, it can
effect positive change for women in more general terms. The recent Commission
decision of Hickie v Hunt and Hunt dealt with the failure of
a legal practice to accommodate a woman's family responsibilities and
adds to the small number of cases that have successfully argued that
a requirement to work full time amounts to unlawful indirect sex discrimination.
- The case significantly
expands our understanding of indirect sex discrimination because it
acknowledges the way in which women who work part time because of family
responsibilities are potentially subject to detriment. The Hickie
case will have ramifications for many industries beyond the one
in which it was brought, and illustrates the power of individual complaint.
- Many women understand
the basics of discrimination law, but tend to be confined to thinking
they have been discriminated against if for example, they are denied
a job or refused accommodation. In the future, it will be important
for women to think more strategically about how the law can be used
to deal with indirect discrimination. If for example, women remain at
lower salary levels than men, it may be a discrimination issue if the
requirements to obtain a higher salary impact more adversely on women
than men.
- In addition, Affirmative
Action legislation is designed so that the employer must more proactively
review policies and practices to eliminate discrimination. While this
has not been a focus of this paper, the importance of ensuring that
policies and practices are effectively implemented and monitored cannot
be overstated. Too often, such policies are paid mere lip service -
the challenge is to make them meaningful to the women they seek to benefit.
- The changing nature
of the workforce and the need for greater flexibility have main streamed
work and family issues for many organisations. Family friendly environments
are not merely about limiting the incidence of discrimination against
women in the workforce, but rather, are about enhancing fairness and
equity as well as developing and fostering organisational cultures which
facilitate change and effective work performance.
- In an academic
culture which prioritises further qualifications and published research
as pre-requisites for success, we need to consider two factors. First,
is this an appropriate way to value the overall contribution many women
academics make? If it is, provision needs to be made to allow women
to meet these criteria. Ensuring that women have access to staff development
initiatives will be fundamental to securing future promotional opportunities.
Women confined to contractual labour or who need to work part time because
of family responsibilities will consistently be marginalised and denied
opportunities because of promotional requirements that they are simply
just not equally able to meet. But if we decide qualifications and research
are not the sole issues in determining suitability for permanent appointment
or promotion, then we must insist that other work is equally valued
in any recruitment process.
- Conferences such
as these are crucial for the development and maintenance of women's
networks which can help define strategies for combatting discrimination.
But women employed or studying in tertiary education should not restrict
themselves to that environment in seeking solutions to the problems
identified. Much can be learned from other sectors and the forging of
outside links can be an essential factor in creating a new path forwards.
- Finally, while the emphasis for action in this paper is on creating change, as Sex Discrimination Commissioner, I must stress that there is a role for individual complaint. Despite an acknowledgement that the Commission receives few formal complaints from women in tertiary education, there is an immense potential for effecting transformation within any environment because of the courage of one individual. Lodging a complaint can be a difficult and time consuming process, but if successful, the rewards can go beyond the individual by forcing organisations to re-evaluate their policies and processes to ensure that women are afforded greater equality and equity.
