The Sex Discrimination Act after 25 years: What is its role in eliminating gender inequality and discrimination in Australia?

(pages 13-17 printed journal)

By Beth Gaze

Introduction

The Commonwealth Sex Discrimination Act 1984 (SDA) turned 25 in August 2009. Has it really come of age as a full grown and effective piece of legislative regulation? Or is it instead a case of arrested development? Answering this question requires an evaluation of the effects of the SDA against a background of extensive social change over 25 years and persistent sex differentiation in our society. Analysing changes in large-scale social phenomena such as gender relations and workplace practices is fraught with difficulty, and identifying operative causes of change from among the multitude of factors that affect these social institutions is near impossible. As a result, conclusive and comprehensive answers about the effects of such legislation are elusive. Instead, most of us tend to favour hypotheses consistent with our own beliefs or ideologies. If we regard society as a neutral but benign environment where it just happened that, historically, women suffered disadvantage, or that women's and men's roles are simply different, then the SDA could be expected to solve the problem. However, if we believe that society is based on gendered distinctions that structurally disadvantage women, we might be more sceptical about the Act's ability to bring about the social change required to provide full equality for women.

This paper assesses the Act's influence, and argues that despite its undeniable achievements, there is cause for concern about its current and future role, and that more than cosmetic reform is necessary.

The Sex Discrimination Act

There is no doubt that the SDA was a vitally important legislative milestone in Australia. It was a national proclamation that sex discrimination was unacceptable in this country. Although South Australia (in 1975) and Victoria and NSW (both in 1977) had already prohibited sex discrimination - and Western Australia did so in 1984 - the SDA first prohibited sex discrimination in the other states and territories. Formal distinctions based on sex became unlawful. Jobs could no longer be advertised for 'men and boys' or 'women and girls', with the better jobs in the former category¹. Women could no longer be paid two thirds of men's rates for the same work, excluded from jobs or from promotion simply because they were female, or dismissed from their jobs simply because they married. This change was a crowning achievement of the hard work of second wave feminist activists. Compared to what preceded it, the Act's practical and symbolic effects were enormously significant and produced major advances in women's position. From today's perspective, however, where formal equality has been established for three decades, it is easier to see the Act's limitations, its disappointing record in the courts, and the need for further changes.

The basic provisions of the SDA prohibit discrimination on the basis of sex, marital status and pregnancy, not merely discrimination against women - to which potential pregnancy and breastfeeding, and a prohibition on sexual harassment, were later added. It covers the areas of employment (including selection), education, provision of goods and services, accommodation, clubs and government administration. One of its most important achievements was the creation of the office of the Sex Discrimination Commissioner, which has been occupied by a series of courageous, articulate women (including the current Governor-General, Quentin Bryce) who have been prepared to enter sometimes hostile public debate to raise issues that need attention and to press for reform. They have kept issues of importance to women on the agenda - including sexual harassment, pregnancy discrimination, work and family conflict, and the need for paid maternity leave - only some of which have had adequate legislative responses.

The Courts and the SDA

The Act prohibits two types of discrimination. Direct discrimination occurs where a person is treated less favourably - on the grounds of sex, marital status, pregnancy or potential pregnancy - than a person of a different sex (etc.) in circumstances that are not materially different. Indirect discrimination occurs where a group of people of a particular sex or marital status are disadvantaged by the effect of an apparently neutral condition, requirement or practice, where that practice is not reasonable. The High Court of Australia has never decided a case on the SDA, but has heard several cases involving equivalent provisions in state sex discrimination laws, on which these comments are based.

The early impact of sex discrimination law was illustrated by the 1980 decision in Ansett Transport Industries v Wardley², in which the High Court upheld the law's prohibition on excluding a woman from recruitment as a trainee pilot simply because she was female. This case illustrates both the achievements of sex discrimination law in ending formal exclusion of women on the basis of sex, and two of the major barriers to women's equality at work that are still in operation: managerial prerogative (where courts may be reluctant to find that a respondent acted on a discriminatory basis) and the 'market' defence (where a respondent argues that they are only acting to provide what the market, that is, the customer, demands). However, it also illustrates the difference between a legal victory and a broad social change - what proportion of flights that you have taken have been captained by female pilots, and what does their absence say about actual equality of opportunity nearly 30 years after Wardley's case? This absence of women is reflected in innumerable positions of power and influence throughout our society despite the SDA's 25 years.

The law's initial approach to dealing with discrimination was relatively unsophisticated, just as social understanding of discrimination was. It was not until explicit formal discrimination was largely eliminated that it became clear that the problem had not been solved: traditional attitudes and practices had not gone away but found other avenues of expression. The social structures of gender, race, sexuality and ability all continued to affect opportunities and expectations, while the target became less overt and hence more difficult to identify. Discrimination turned out to be a stronger and more subtle phenomenon than the law had anticipated. The lesson from Wardley was that you could not overtly exclude women, but if the same thing was done covertly, it was very difficult to challenge, because the complainant bears the onus of proving that the basis of the employer's decision was the prohibited attribute.

Since formal exclusion of women was prohibited, workforce practices moved from exclusion of women to treating them as if they were men. This has not provided equality for women, as data on women's progress in a number of areas indicates. Refusing to take account of responsibilities for care of dependents such as children, people with disabilities and the elderly tends to reinforce the disadvantages experienced by the group that tends to be allocated these responsibilities, disproportionately women.

The most recent High Court sex discrimination decision illustrates that indirect discrimination law has not proved to be an effective method for challenging gendered social practices. In Amery v NSW³, a group of female long-term casual teachers complained of sex discrimination because their pay scale stopped at the equivalent of level 9 of the 13-point pay scale available to permanent teachers. Women were disproportionately represented in the long-term casual category, because permanent teachers could be posted anywhere in the state. To avoid such a posting for reasons of childcare or their husband's job, many women who were permanent teachers had to revert to casual status when they had children. Their indirect sex discrimination claim was upheld by the NSW Court of Appeal, but the High Court rejected it, saying that permanent and casual teacher categories could not be regarded as one job category to which a condition - of being able to move within the state - was applied. Instead, they were completely different job categories.⁴

The Amery decision confirms that neither direct nor indirect discrimination law is sufficient to bring about the changes to the deeply embedded social and employment practices necessary for greater equality at work. The law has not limited workforce practices, conditions and expectations that are based on an assumption that the worker is free of care responsibilities. This is not equality for women, and it is not surprising that the data on women's position in Australia today indicate that equality has not been achieved, and there is still a long way to go.

Women in Australia today

Statistics collated by the Sex Discrimination Commissioner show that, compared with other developed countries, progress towards equality for women in Australia has been disappointing.⁵ Women represent more than 50 per cent of the Australian population, but hold only 29 per cent of elected positions in the 2007 Australian Parliament. They chair only two per cent of ASX200 companies (four Boards), hold only 8.3 per cent of Board directorships; only four chief executive officer positions and only 10.7 per cent of Executive Management positions. Although Australia is in a group of countries ranked number one for women's educational attainment, it ranks 41 for women's participation in the workforce, 17 overall in the Global Gender Gap Index, and 28 in the world for women's representation in Parliament. Although women are 45.1 per cent of the Australian workforce, and 58.9 per cent of women participate in the workforce compared with 72.1 per cent of men, many women work part-time and casual jobs to fit in family responsibilities. Women earn 84.3 cents in the male dollar (for full-time adult ordinary time earnings), but only 66 per cent of what men earn overall. This is because of their part-time status and the slight widening of the gender pay gap over the last three years.

While factors such as the move to neo-liberalism have clearly contributed to the lack of progress (and even regression) for women, some problems in the Act are also significant. The Act's definitions of discrimination were weaker than those of comparable overseas laws when it was adopted, and its enforcement depended solely on litigation by the victims of discrimination - no small matter for someone who had lost their job or endured sexual harassment at work, especially given that legal aid in this area is very limited. When cases have been litigated, narrow and technical interpretations have often been adopted, especially by the higher courts as in Amery, that have further weakened the law as a weapon against discrimination. In successful cases, damages have been quite low. This means there is limited incentive to enforce the law, and hence limited pressure for change in social and workforce practices to avoid discrimination.

The need for change

Sex discrimination law needs better tools to tackle systemic practices that continue to disadvantage women. Employment practices that disadvantage women because they do not meet stereotypical expectations, or because they may have care responsibilities that might restrict their mobility or ability to work long hours or evenings, have not changed. It is hard to see how women can be equal in the workforce unless such practices are challenged. Commentators no longer believe that the 'pipeline effect' (women have not yet come through the system in sufficient numbers) is the reason for these disparities, which have persisted despite women's presence in the workforce and professions in substantial numbers for decades. Finally, and perhaps most tellingly, our social and economic arrangements ensure that women are poorer throughout their lives than comparable men and face poverty in much higher proportions in retirement⁶, as documented by the Australian Human Rights Commission. Despite apparent advances for women in the workforce, this data confirms that many women are only a relationship breakdown away from poverty - a situation that has changed very little in past centuries.

Workplaces still operate on the assumption that the employee is a full-time worker with no domestic caring responsibilities or that they have someone to fulfil those responsibilities for them. This model fits men's but not women's lives, and the male norm at work is maintained through women's exposure to sexual harassment, gender pay inequity, and working conditions that do not make allowances for caring responsibilities that are assumed to be women's obligations. This virtually ensures that a majority of women will 'choose' to take the available casual and part-time, usually poorly paid, jobs in retail, clerical and community services, enabling them both to carry out the care responsibilities that are regarded as theirs and remain in the workforce.

Recent moves to allow employees to request flexible work hours to manage their care responsibilities⁷ have come through the industrial law system rather than sex discrimination law. However, there have been no initiatives to encourage men to share care responsibilities or to solve the underlying problems of gender pay inequity, sexual harassment and the male norm of the ideal worker. Paid parental leave will arrive (eventually) in 2011, but unless the underlying problems are addressed, paid parental leave without encouragement for men to take their share of responsibility for childcare will simply reinforce women's responsibility for infant care and subsequent childcare. Our neo-liberal political environment does not question these practices, at least not if it would increase the budget deficit.

Conclusion - what reforms are needed?

What does all this say about the effect of the Sex Discrimination Act at 25? What could we expect from sex discrimination law outflanked by social and economic ideologies, where media and public debate tends to assume that women 'are equal'? Sex discrimination law based on private enforcement has not been up to task. While individuals need an avenue to seek compensation for harms they suffer, relying solely upon private enforcement suggests a weak commitment to stopping discrimination. Sex discrimination needs to be recognised as a broad social and structural problem, not merely a complaint for the few individuals who recognise it and are prepared to fight for their rights. It must be tackled at a systemic level in order to change practices on a society-wide basis. The burden of enforcement has to be undertaken publicly, and be directed towards changing systemic practices rather than solely to redressing individual cases. Although the need for some reform has been recognised in recent reviews of anti-discrimination law⁸, there is no sign yet of any legislative change.

Comparable countries have placed much more emphasis on enforcement by public authorities, such as equality agencies, and on developing proactive requirements. For example, the UK has an equality duty that requires public sector bodies to consider women's (and other) equality issues in all policy development and service provision. The US requires companies seeking government contracts to comply with affirmative action requirements (relating to minorities as well as gender) and ensure their subcontractors do so as well. Some Australian governments have used this approach in very limited areas - such as equal opportunity in briefing barristers - yet there is scope for much broader application.⁹However, these approaches require substantial sums of public money and risk becoming bureaucratic exercises or burdensome and difficult to monitor and enforce on a broad basis.

There is another possible alternative. Norway has imposed quotas on women's board representation since the mid 2000s with success, and France is currently considering doing so. Closer to home, the ALP has had an affirmative action quota for women in winnable seats that has been highly effective in increasing women's representation in the current Government. Even the ASX has recently adopted a policy that requires changes to be demonstrated in women's participation on boards to avert the imposition of a quota. Despite media hysteria about quotas, after 25 years, a stronger alternative may be necessary to keep faith with the generations of women who have been promised equality but found the promise to be empty.

In conclusion, although the SDA has been vital to progress, it has not been enough, and thorough legislative reform will be needed for greater progress.

¹ S. Magarey, "'To Demand Equality is to Lack Ambition'. Sex discrimination legislation: Contexts & contradictions," Paper presented at the Sex Discrimination Act Silver Anniversary Conference, Canberra, 1-2 Oct 2009.

² Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) HCA 8. The case was brought under the equivalent provisions of the Victorian Equal Opportunity Act 1977. Ansett refused to recruit Deborah Wardley as a pilot, even though her test scores on the intake testing were higher than those of some men who were recruited, because Reginald Ansett did not want women flying his planes, asserting that passengers would not feel safe.

³ New South Wales v Amery (2006) HCA 14. This case was brought under the Anti-Discrimination Act 1977 (NSW).

⁴ In addition, the distinction was found in the NSW Education Act, which authorised, but did not require different pay scales.

⁵ Australian Human Rights Commission (AHRC), Sex Discrimination Commissioner: 25th Anniversary of the Sex Discrimination Act (1984), www.hreoc.gov. au/sex_discrimination/sda_25/index.html

⁶ AHRC, Accumulating Poverty: Women's experiences of inequality over the lifecycle (2009). The statistics referred to in n. v show that in 2007, 2.8 million women and 1.6 million men aged 15 years and over reported not being covered by superannuation; half of all women aged between 45 and 59 have $8,000 or less in superannuation; and current superannuation payouts for women are one third of men's - $37,000 compared with $110,000. At the same time government policies direct support through superannuation subsidies to those with the highest salaries and greatest workforce connection, rather than individuals whose need is greatest (for example through social security pensions).

⁷ This is one of the rights in the National Employment Standards for all employees under the Fair Work Act 2009, Part 2-2, Division 4 (ss.65 -66). The 'right to request' is only a procedural, not a substantive, right: to request flexible conditions of work, and to receive an answer that addresses the substance of the employer's workforce needs, not simply a blank refusal.

⁸ See for example Senate Legal and Constitutional Committee, Report on the Effectiveness of the Commonwealth Sex Discrimination Act 1984 in eliminating discrimination and promoting gender equality (2008); Victoria, Department of Justice, An Equality Act for a Fairer Victoria: Report of the Equal Opportunity Review (2008).

⁹ See eg. C. McCrudden (2007), Buying Social Justice: Equality, Government Procurement, & Legal Change:, Oxford University Press.

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