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6th Women and Labour Conference

Sex Discrimination

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    withdrawn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