Discrimination law

NSW Equal Opportunity Tribunal
Keywords: sex discrimination; direct discrimination; education

Summary

Melinda Leves attended an all girls school and her twin brother, Rhys, attended a nearby all boys school.  Different electives were offered at each school.  While Rhys had the opportunity to study industrial design courses, Melinda could undertake home economics subjects only.  Melinda argued that the education authorities discriminated against her and her fellow female students on the basis of their sex.

Feminist judgment

The tribunal held Melinda Leves was treated less favourably than Rhys Leves in being denied access to the industrial arts subjects on the ground of a “domestic” characteristic which was generally imputed by the respondent to females, but not to males.  The Education Department appealed to the Supreme Court, but the board’s decision was upheld: Haines v Leves (1987) EOC 92-192. In the course of its judgment the tribunal stated:

‘‘The mere statement of this traditional approach to boys’ and girls’ education reveals its inappropriateness to present conditions.  The majority of women are now in the [paid] workforce, and more and more women are seeking alternatives to their traditional domestic role.  It was no doubt a recognition of these factors which led the Department, in 1979, to urge all schools to strive towards providing a non-sexist education for girls. […]  Girls are still presumed to want and to gain benefit from the education which contains a domestically oriented component, rather than a career oriented component…”

“The case reveals discrimination against girls in education in itself, and as a foundation for discrimination against girls in their future careers.

- Jocelynne Scutt, Women and the Law (Law Book Company Limited, 2002) 63.

High Court of Australia: Deane, Gaudron and Dawson JJ
Keywords: indirect discrimination; sex discrimination; employment: dismissal, retrenchment

Summary

The case concerned retrenchments made by Australian Iron & Steel against a background of discriminatory hiring practices. While men who applied for employment were taken on almost immediately, women who applied had to wait a considerable time, sometimes years, for a job opportunity to become available. Consequently, when AIS commenced retrenchments on the basis of ‘last on, first off’, women had much less seniority than men who had applied at the same time, although the actual proportions of men and women retrenched from the workforce were very similar.

Feminist judgment

Deane and Gaudron JJ in a joint judgment and Dawson J in a separate judgment demonstrated a clear understanding of the effects of past discrimination against women on the constitution of the AIS workforce and applied the definition of indirect discrimination in the NSW Anti-Discrimination Act 1977 in such a way as to avoid perpetuating that past discrimination.

Western Australian Equal Opportunity Tribunal
Keywords: direct discrimination; racial discrimination; refusal of employment

Summary

The complainant alleged that she was refused employment at the respondent’s grocery due to racial discrimination. The Tribunal found that the interview given to the complainant had not been reasonable such that the complainant was treated less favourably than a white woman in the same circumstances would have been.

Feminist judgment

This case involved an Aboriginal woman’s race discrimination complaint against a Cooperative whose manager “was peremptory to the point of rudeness” when he interviewed her for a job, treating her as if “she almost did not exist” (at 78,181). It is one of the few discrimination cases in which the tribunal not only pursues the inferences made available by the evidence, but uses context and purpose to look behind the respondent’s rational (racially–neutral) explanation. By doing so, the tribunal reveals that the treatment experienced by Mrs Slater was informed by the systemic racial division between whites and Aboriginal peoples in the town of Brookton, so that causation could be established. Significantly, the analysis in Slater can also be distinguished from most other direct discrimination cases because the tribunal was not fixated on locating ‘fault’ in the manager’s behaviour – in fact, the tribunal was not concerned whether or not the manager was aware that his behaviour was discriminatory towards Mrs Slater but instead, was concerned whether or not his behaviour had this effect.

Victorian Equal Opportunity Board
Keywords: direct discrimination; sex and race discrimination; employment: terms and conditions of employment; non-English speaking background woman; intersectionality

Summary

Ms Fares argued that she had been discriminated against in her workplace because she was a woman from a non-English speaking background.  This was the first time that a Tribunal found discrimination on combined grounds – here on the basis of sex and ethnicity.

Feminist judgment

“The Board accepted background evidence to the complaint. This provided a cumulative picture of the discrimination experienced by non-English speaking background women at the TAFE and the context for the complaint. In this way the complaint was not treated in isolation but rather the entire environment of the workplace and the experiences of the women were considered relevant to its determination. The Board appreciated that there were particular negative stereotypes applied to non-English speaking background women in that work environment. It commented that the TAFE held a belief that NESB women are generally more emotional, highly strung, demanding and overly conscientious in their work, long winded and unable to be concise, holding undue regard for academic qualifications as opposed to practical experience and thus ambitious for themselves. The Equal Opportunity Board held that the complainant had suffered less favourable treatment as a result of her sex and ethnicity”

- Australian Law Reform Commission, Equality before the Law (Report No 67, Parts 1-2, 1994) at 3.65.

Djokic v Sinclair [1994] HREOCA 16 (24 August 1994)

Human Rights & Equal Opportunity Commission: President Wilson
Keywords: direct discrimination; sex discrimination; employment: dismissal

Summary

The complainant was a packer in a Rockhampton meatworks. She was subjected to racist and sexist abuse and harassment. The union provided no support but sided with those who saw her as a troublemaker.

Feminist judgment

Wilson P strongly condemned the treatment experienced by Ms Djokic in this male-dominated workplace, including the union’s failure to support her, as seen in the following extracts:

“The evidence…inclines me to view the meatworks at the material time as a union-dominated male world which, with a few exceptions, tolerated women only so long as they knew their place.

“The widespread enlightenment of recent times in terms of the dignity, equality and worth of all human beings, expressed in the workplace in the principles of fairness and equal opportunity, had not yet penetrated this establishment. The complainant entered this place as a strong, courageous woman wanting to work. She left it, less than 2½ years later, a woman broken in health though not yet in spirit, a victim of pettiness and sexist and racist attitudes….

“I reserve my harshest criticism for the behaviour of the union leadership and some members employed at the plant. … Content to take her union dues and enrol her as a member, the union officials gave the complainant neither the support nor protection she deserved. The AMIEU could have challenged the sexist and racist attitudes that were being expressed. But the complainant was seen as a troublemaker, an overbearing woman who would not conform. She represented a threat to the stranglehold the AMIEU had over work practices in the meatworks. So when the final explosion came, the AMIEU and the management combined to secure her dismissal. It did not look after her interests in the termination conference, it refused to lodge an appeal on her behalf and it is asserted by the complainant that it has obstructed her efforts to prepare for these proceedings. Such irresponsible abuse of power is deserving of the strongest criticism.”

[1996] HREOCA 35 (9 December 1996)

Human Rights & Equal Opportunity Commission: Commissioner Rayner
Keywords: sexual harassment; employment; Briginshaw test

Summary

The complainant alleged sexual harassment in the course of her work for the second respondent.  The first respondent was a director of Piquante Palate Gourmet Deli. The complainant alleged that Mr Hookey had ‘made a pass’ at her at the conclusion of her shift.  The Commissioner found that the complainant’s allegations were substantiated.

Feminist judgment

In the course of her judgment, Commissioner Rayner referred to the test in Briginshaw v Briginshaw (1938) 60 CLR 336 (a family law case), which provided for a heightened standard of proof in light of the seriousness of the allegations made, the unlikelihood of their occurrence and the gravity of the consequences flowing from a positive finding. Previous sexual harassment cases had applied this test unquestioningly, making it more difficult for complainants to discharge their burden of proof. Commissioner Rayner explained why the Briginshaw test will not always be appropriate in sexual harassment cases:

“The Briginshaw test was enunciated in a very different context. Proof of adultery determined whether or not a marriage was dissolved at all and entitlements to maintenance, property division and the custody of and access to children were determined on the basis of fault. The social climate was such that divorce, adultery and sexual intercourse between unmarried people were much less common or acknowledged, and had far graver social and economic consequences than today.

“The Sex Discrimination Act was passed by the Commonwealth in 1984 in pursuance of its international obligations to prevent discrimination. There have been decades of law reform and social change since Briginshaw’s case, and we now have very different attitudes to sex, more egalitarian relationships between women and men, considerable change in the status of women and in the law and rules of evidence about the evidence of women and children concerning sexual matters.

“The definition of `sexual harassment’ in the Sex Discrimination Act 1984 covers a very broad range of unwanted sexual conduct including a sexual advance or request for sexual favours and a statement of a sexual nature to or in the presence of a person. The Briginshaw test is obviously inappropriate for all sexual harassment complaints.”

Hopper v Mount Isa Mines Ltd and Others [1997] QADT 3 (29 January 1997)

Queensland Anti-Discrimination Tribunal: President Atkinson
Keywords: sexual harassment; sex discrimination; employment; vicarious liability

Summary

This was a relatively early decision under the Queensland Anti-Discrimination Act 1991. The case involved persistent sexual harassment and sex discrimination against a woman apprentice mechanic working at MIM. The company argued it had policies against discrimination and so should not be held vicariously liable.

Feminist judgment

Commissioner Atkinson noted the failures of management to do anything to prepare a previously all-male workplace for the entry of women, to act on the high attrition rate of female apprentices, to communicate policies effectively, or to respond to complaints when they were made, and found vicarious liability. She dismissed the company’s argument that Ms Hopper did not complain while she was in employment, finding that she had good reasons for not doing so, including fear of victimisation. The decision was upheld on appeal to the Queensland Supreme Court.

JM v QFG and GK and State of Queensland [1997] QADT 5 (31 January 1997)

Queensland Anti-Discrimination Tribunal: President Atkinson
Keywords: direct and indirect discrimination; lawful sexual activity; provision of goods and services; lesbian couple: donor insemination

Summary

JM was a young woman in a committed and exclusive lesbian relationship.  She contacted QFG, a group of doctors who specialised in infertility, to seek advice about receiving donor insemination treatment. Dr GK was made aware of JM’s relationship circumstances, and agreed to provide treatment on condition that JM returned a consent form signed by both the ‘husband’ and ‘wife’. JM refused to complete the form was refused the treatment. Dr GK argued that while there was no legislative provision prohibiting the delivery of such services to homosexual couples, there was an unwritten agreement between Queensland Health and QFG that treatment would only be provided to heterosexual couples and married women, and that failure to comply with this agreement could result in a loss of government funding. 

Feminist judgment

President Atkinson found that JM had suffered direct and indirect discrimination under the Anti-Discrimination Act 1991 on the basis of her ‘lawful sexual activity’.  She rejected the notion that JM did not require treatment as she was not medically infertile, noting broader definitions of infertility existing nationally and internationally. She also pointed out that the Anti-Discrimination Act trumps unwritten agreements, and that there was no real threat to QFG’s registration if treatment was provided to JM. The President’s decision was overturned on appeal to the Queensland Supreme Court, and the Supreme Court’s decision was in turn upheld by the Queensland Court of Appeal. The Court of Appeal’s decision is rewritten by Anita Stuhmcke in the book of Australian Feminist Judgments.

Hickie v Hunt & Hunt [1998] HREOCA 8 (9 March 1998)

Human Rights & Equal Opportunity Commission: Commissioner Evatt
Keywords: indirect discrimination; sex discrimination; employment: terms and conditions of employment; maternity leave; part-time work

Summary

A law firm partner went on maternity leave and proposed to return part-time. When she returned, she found that most of her practice had been redistributed and she eventually lost her job.  Commissioner Evatt found indirect sex discrimination in that the firm had imposed a requirement that in order to retain her position it was necessary to work full-time. Ms Hunt was awarded $95,000 damages.

Feminist judgment

Commissioner Evatt dealt with the other elements of indirect discrimination by taking into account general knowledge about women’s employment patterns, the manifest disadvantage to Ms Hickie, and the more general effect on women lawyers of a full-time work requirement:

“Although no statistical data was produced at the hearing, the records produced by Hunt and Hunt suggest that it is predominantly women who seek the opportunity for part time work and that a substantial number of women in the firm have been working on a part time basis. I also infer from general knowledge that women are far more likely than men to require at least some periods of part time work during their careers, and in particular a period of part time work after maternity leave, in order to meet family responsibilities. In these circumstances I find that the condition or requirement that Ms Hickie work full-time to maintain her position was a condition or requirement likely to disadvantage women.

“The question of the reasonableness of the requirement has to be considered in the light of the nature and extent of the disadvantage, which in this case is clear and obvious. The imposition of a condition, requirement or practice that a partner work full time would inevitably disadvantage women practitioners, especially those who are, or who are aspiring to be partners. To regard this as a reasonable requirement would perpetuate and institutionalise indirect discrimination against women lawyers. In so far as it is argued that the condition is reasonable in its application to Ms Hickie, it has not been established that Ms Hickie could not perform all her functions without working five days a week, and this was not raised with her in cross-examination. When she was nominated for contract partnership it was understood that she would work part time for about 9 months. The respondent has put forward no material under s 7B(2)(b) or (c) concerning the feasibility of overcoming this disadvantage, or as to whether the disadvantage is proportionate to the result sought by them. It would be difficult for them to do so, given their experience with part time work. It has not been established that the condition, practice or requirement to work full time, imposed on Ms Hickie was reasonable in the circumstances.”

McBain v Victoria [2000] FCA 1009 (28 July 2000)

Federal Court: Sundberg J
Keywords: marital status discrimination; provision of goods and services; infertility treatment

Summary

This case concerned a challenge to the Victorian Infertility Treatment Act 1995, which provided that infertility treatment could only be provided to a women who was married and living with her husband, or was living with a man in a de facto relationship.  Dr McBain wished to provide treatment to Ms Meldrum, who was a single woman not living in a de facto relationship.  He sought a declaration that the Victorian Infertility Treatment Act was inconsistent with the federal Sex Discrimination Act 1984, which prohibits discrimination on the grounds of marital status, and was therefore invalid to the extent of the inconsistency under s 109 of the Commonwealth Constitution. The Australian Catholic Bishops Conference intervened in the case to argue that infertility treatment services were not governed by the Sex Discrimination Act and thus there was no inconsistency. 

Feminist judgment

The arguments of the Catholic Bishops were rejected by Sundberg J, including the argument that infertility treatment fell within an exception to the Sex Discrimination Act for “services the nature of which is such that they can only be provided to member of one sex”. He noted:

“[T]he nature of these treatments is such that they are capable of being provided to both sexes.  The service is the “treatment procedure”—the artificial insemination of a woman with sperm from a man who is not her husband, or a fertilisation procedure.  The reason for undertaking either of these procedures may be because of some physical feature of a man or a woman. … The fact that for biological reasons the embryo is placed in the body of a woman is but the ultimate aspect of the procedure” (Sundberg J at [15]).

Regina Graycar and Jenny Morgan, The Hidden Gender of Law (Federation Press, 2nd ed, 2002) 40, 250-257.