The barriers to pursuing workplace equality for women

Abstract

Sex discrimination has been prohibited in the workplace for over 40 years. Yet even though sex discrimination persists, very few claims reach the courts each year. This Brief reports on the findings from a small interview study with Victorian lawyers which sought to identify the barriers that women face when contemplating whether to pursue a legal claim for sex discrimination at work.

The barriers to justice in this space are just too great for the importance that it is. ¹

In 1977 Victoria became one of the first Australian jurisdictions to prohibit sex discrimination in the workplace, pre-dating federal legislation by seven years. ² The Equal Opportunity Act 2010 (Vic) (EOAV) prohibits discrimination on the basis of sex, pregnancy, breastfeeding and family responsibilities. ³ The Sex Discrimination Act 1984 (Cth) (SDA) and the Fair Work Act 2009 (Cth) (FWA) contain similar prohibitions. Yet women rarely pursue sex discrimination claims to hearing; the majority are settled or withdrawn. Between 2012 and 2021, only eight sex discrimination claims reached a full hearing in the Victorian Civil and Administrative Tribunal (VCAT). Just 10 SDA claims reached a full hearing in the federal courts.

The lure of settlement goes some way to explaining why courts hear so few cases each year. Under the EOAV, complainants can select conciliation at the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) or lodge their claim at VCAT which may order a compulsory conference prior to hearing. Conciliation is compulsory for SDA claims and for FWA claims if the woman’s employment was terminated. If the claim proceeds, the federal courts also use alternative dispute resolution methods to attempt to procure settlement. ⁴

It is unlikely the reason for the lack of cases is that the law has achieved its purpose and women are no longer experiencing discrimination at work. The VEOHRC continues to receive complaints about sex discrimination, ⁵ as do community legal centres. Reports by the Australian Human Rights Commission (AHRC) revealed that pregnancy discrimination persists, as does workplace sexual harassment. ⁶ So why do women decide not to litigate their sex discrimination claim?

To shed some light on why so few claims reach the courts each year, we conducted a small interview study with Victorian lawyers who had represented a female worker who litigated a sex discrimination claim. ⁷ One of the study’s aims was to identify the barriers that women face in litigating. As this Brief reports, the woman’s state of health and wellbeing, potentially having to give evidence, and the cost of legal action emerged as the key barriers to going to court.

Barriers to litigating

The lawyers were asked whether women face specific barriers when contemplating legal action for sex discrimination. This section sets out the common factors the lawyers take into account when deciding whether to advise their client to pursue their complaint beyond conciliation.

First, the lawyers recognised the importance of assessing the state of the woman’s mental health and wellbeing at the time she is contemplating legal action. One lawyer said that they will make sure that if the woman is being treated by a medical professional, that medical professional approves the chosen course of action before the complaint proceeds. The lawyer excludes their client from any processes that may be triggering. Another lawyer noted that, while VCAT and the Fair Work Commission are user-friendly, the federal courts are not. Of the Federal Court, they said, ‘it’s a very difficult process for someone who might be unwell to get through.’

Second, even if a woman possesses the fortitude to endure litigation, exposing herself to public scrutiny is a barrier. Lawyers said that they will evaluate the complainant’s personal circumstances to decide whether they think she can withstand cross-examination and ‘the detail being raked over in a very minute way.’ Of the hearing, one lawyer said ‘you’ve got everything laid bare. Every interaction laid bare because the counsel on the other side are doing their job.’ They described cross examination as ‘generally an uncomfortable experience’ and said one client had heard ‘horror stories’ from other people about what it was like to give evidence and, because of that, did not want to go through a trial.

Finally, the lawyers said that the most significant barrier to pursuing litigation is the cost. ⁸ There are two factors at play – the cost of taking legal action and, for claims under the SDA, the risk of an adverse costs order if the employee loses. ⁹ Lawyers described the cost of legal action as a substantial risk factor and a reason to settle. One lawyer said cost ‘is a huge factor and it pressures most human rights to be seriously compromised rather than dealt with by justice’. Another said they had ‘had matters … that have gone into the Federal Court and have literally cost millions, literally millions, of dollars to get to the other end.’ Another lawyer said that, given the cost, ‘it takes a remarkable amount for a woman to stand up for herself and say, “Well, I’m just going to do it. I don’t care”.’ The risk of an adverse costs order was cited as a reason lawyers avoid using the SDA and prefer to use the EOAV. One lawyer described the SDA as ‘very susceptible to being deep pocketed.’ Another said that if a client has to pay the other side’s costs it ‘can be horrendous and can have a disastrous effect on the person.’ However, another lawyer was of the view that the cost of litigation should have a substantial impact, stating that ‘the last thing you would want to do is potentially risk more than the reward is worth.’

The emotional cost of litigating

The findings from this study suggest that how the behaviour (whether sexual harassment or sex discrimination) has impacted on the woman’s health and wellbeing greatly influences their lawyer’s advice about the best way to proceed. Considering the emotional and psychological impact that litigation may have on a client is not unique to discrimination lawyers, but this is an area where complainants are often vulnerable and so this issue is at the forefront before other factors are considered. The complainant’s vulnerability reinforces the importance of having alternative dispute resolution mechanisms available so that the parties can resolve the matter without the stress and, potentially, publicity of a trial.

The emotional toll placed on the woman who has experienced sex discrimination is significant, noting that there is no enforcement body that can take action on her behalf. ¹⁰ She must, as Smith puts it, ‘name, blame and claim’. ¹¹ Over many years there have been persistent calls to remove the entire burden of addressing discrimination and promoting equality away from the individual, shifting it to a statutory body which has power to enforce the law. ¹² This has yet to be addressed by government at any level. Ways that women with the tenacity to pursue a claim could be supported are worthy of further consideration by both government and the legal community.

The financial cost of litigating

This study’s finding that the cost of litigating a sex discrimination claim (particularly under federal anti-discrimination laws) is a reason for settling is not new. The AHRC’s Respect@Work report into workplace sexual harassment and sex discrimination identified that the cost of taking legal action may be having a ‘negative impact on access to justice, particularly for vulnerable members of the community.’ ¹³ Thornton, Pender and Castles recently conducted a comprehensive analysis of costs orders in sexual harassment claims ¹⁴ finding that, in federal claims, unsuccessful complainants have been ordered to pay the respondent’s costs 34 per cent of the time. ¹⁵

Nor is this longstanding issue limited to sex discrimination claims. ¹⁶ Blackham’s recent extensive study of age discrimination complaints showed that the potential cost of claiming and the fear of a costs order is deterring complainants. ¹⁷ Thornton et al found that costs orders are increasing over time and this applies to all attributes. ¹⁸

The financial cost cannot be considered in isolation; the issue is intertwined with damages awards. Successful litigants often pay their legal costs out of the damages awards ¹⁹ and, throughout the lifetime of sex discrimination legislation, damages awards have been low. Thornton and her co-authors found that the average award for economic loss in a federal sexual harassment claim was $30,034.09 and $14,268.89 for general damages. ²⁰ It is lower for sex discrimination claims. The average award for economic loss is $24,861.44 and $7825.09 for general damages. ²¹

In late 2022, the Albanese government proposed introducing a costs neutrality provision into all federal anti-discrimination Acts, meaning that the default position would be that each party bears its own costs. ²² But the proposal was met with resistance and ultimately removed. Subsequently, the Commonwealth Attorney-General’s Department was asked to conduct an inquiry into how costs are awarded under the federal anti-discrimination Acts. ²³ Although there was a lack of consensus among the legal community about the most appropriate way of awarding costs in discrimination claims, there is an appetite by practitioners for the issue to be clarified. Change, then, may well be on the horizon – at least in the federal jurisdiction.