By Angela Matheson
After almost a decade of sex discrimination legislation, government figures show Australian women still fill the bottom rungs of the job market, earn 36% less money on average than men, and continue to suffer sexual harassment on a wide scale.
And while it's true that the cruder forms of discrimination have gone — women are no longer banned from universities, job advertisements cannot be listed under sex, and legal action can be taken if a person is sacked because of pregnancy — sex discrimination continues to be a fact.
The Sex Discrimination Act of 1984 prohibits discrimination on the grounds of sex, marital status or pregnancy. But according to a federal parliamentary inquiry into the status of Australian women, which received more than 500 submissions from government bodies, organisations and individuals across the country, legislation fails to protect women adequately against subtle forms of discrimination and in some cases even reinforces traditional sexist stereotypes.
The report, which was completed in January, also criticises the exemptions granted to many bodies and departments. The armed services, the Department of Social Security(DSS), religious schools and sporting bodies are legally entitled to discriminate against women. Certain positions within the armed services are closed to them, sporting organisations can exclude them or award less prize money for their events, and the DSS casts them in the role of domestic dependents.
According to Labor MP Michael Lavarch, chair of the committee, the most serious flaw in the act is its failure to acknowledge that women cannot compete on the same terms in the work force because of the time they spend running the domestic economy.
"Most legislation dealing with discrimination against women has a hidden assumption that child-care and housework are not serious while paid work is", he said. "It fails to acknowledge the key issue — that without the unpaid labour of women, the Australian economy would go bankrupt."
Each year, he says, millions of work hours are spent looking after children and running the home, caring for sick relatives and running volunteer agencies like Meals on Wheels, the Nursing Mothers Association, sporting groups and other community organisations.
Yet this is not taken into account in the workplace. The qualifications and performance of women continue to be judged by male standards which reward workers with a typical male career pattern of full-time, unbroken employment. In contrast,
many women, because of the burden of family responsibilities, work part time, take time off to look after sick children and often cannot work overtime.
"Compare the case of a clerk who takes five years off to have children with a man who has had an unbroken career", says Lavarch. "When the two of them apply for the same job, the selection criteria may appear fair and equal, but the man gets the job every time."
Dr Gretchen Poiner, former head of the now disbanded Women's Research Unit at the University of Sydney, agrees. She found that selection criteria for academic appointments which appear to be neutral are frequently heavily weighted against women. Official statistics show 92% of professorships and other senior academic positions are still held by men, while women continue to occupy the bottom levels as part-time junior assistants, sub-lecturers and tutors.
"Leaving aside the obvious sexism, which is considerable, female academics continue to be considered less qualified because they do not have the mobility to chase different posts, do not have time to write as many research papers and need time off to look after children. The male academic profession was set up by men for men, and women are supposed to slot into it. That's considered to be equality", she said.
"And sadly, after years of equal employment opportunity legislation, affirmative action policies and anti-
discrimination laws, the changes women were hoping for just haven't happened."
The Lavarch report says it is time employers were made to take account of the different career patterns women follow. It recommends that inflexible working hours and work practices which ignore the competing role of women as worker in the home be considered as indirect discrimination.
It also suggests the removal of loopholes which can be used by employers and organisations to discriminate against women.
Currently, says Lavarch, many employers use apparently neutral regulations and personnel management policies to keep women off the job.
A much publicised example is the 1988 BHP case, where management justified the retrenchment of many women workers on what appeared to be a fair employment policy — last on, first off. But because the company had only just changed former discriminatory employment practices, its most recent employees were women, and they were disproportionately sacked. The High Court found in favour of the women and held BHP liable for damages for indirect discrimination.
The Proudfoot case, currently before the Human Rights Commission and the Federal Court, is another example of apparently neutral provisions within the act which can be used
against women. Dr Alex Proudfoot, a senior officer with the Department of Health, has claimed that the Canberra Women's Health Centre (CWHC) discriminates against men because it was set up to deal only with women's health needs.
Marion Sawyer, senior lecturer at the Faculty of Management at Canberra University, who has been responsible for the ACT Women's Electoral Lobby's submission to the Lavarch report says, "It is appalling that the Sex Discrimination Act can be used to attack services which women have struggled for and which are meeting the needs of women ignored in the past."
She believes the act needs to abandon its present gender neutrality, which fails to acknowledge that women as a group have been actively discriminated against by men since settlement.
"The fact is", says Carol Gilbert, a board member of CWHC, "many of the health problems and injuries women suffer are caused by men — domestic violence and incest for starters. The act is supposed to stop discrimination, not to harass the logical rights hard won by disadvantaged groups."
Few discrimination cases end in court. Up to 95% of cases are sorted out in conciliation. But according to the equal opportunity commissioner for Victoria, Moira Raynor, there is room for improvement in the handling of sexual discrimination complaints. Currently, women lodging complaints must fill out forms and may have to wait months before meeting a conciliator.
"If someone rings in complaining of sexual harassment at work, we should strike while the iron's hot and try to sort it out on the spot", she says, "If you wait three months before getting both parties before a conciliator, it's often too late and the woman will have dropped the complaint or left the job."
She wants a fast track system in which serious or easily resolved complaints are dealt with immediately. She also advocates a follow-up process which would chart the success of the conciliation session in resolving discrimination disputes.
But women whose income comes from religious organisations or the DSS have little protection under the act, and the report recommends the exemptions granted to church-run schools and Social Security should go.
Teachers can be sacked if they become pregnant outside of marriage or live in de facto relationships. Laura Wright of the Independent Teachers' Association says, "Teachers in church-run schools are second-class citizens who are expected to conform to the religious norm of the family and are not protected by law like state teachers".
Lavarch argues the DSS's endorsement of stereotypes is a
major stumbling block to achieving equal rights for women. He cites cases in which women are refused unemployment benefits or supporting parent's benefits if they are in a de facto relationship. And unattached women seeking work are often denied benefits — only those seeking full-time employment are eligible for benefits, but because of child-care obligations many women can work only part time.
"The DSS enshrines a family model and a workplace model long gone — that of a one-income family with male as full-time breadwinner and woman as dependent", he says. "If the DSS wasn't exempt, then women would perhaps be able to complain of discrimination on the basis of marital status and sex."
Lavarch argues that if all discrimination against women were removed, there would be an enormous financial redistribution in Australia. He also believes true equality for women is unlikely to be achieved under the present system.
"Until the day the workplace and society as a whole are remodelled so men as well as women take responsibility for domestic labour, then at least we should acknowledge the debt the economy owes women in our legislation." he says.