This article was produced by Maurice Blackburn in commercial partnership with BusinessDay.
At a time when there is a sense of fatigue in the debate around gender equality, the ‘Be Bold for Change’ theme for International Women’s Day today is rather timely.
We’re sure to hear the usual speeches about diversity in the workplace and how far we’ve come, but what is needed are bold changes to laws to really address the systemic and, sadly, ever-present discrimination that women continue to face in the workplace.
Anti-discrimination laws have existed in for more than 30 years, which without a doubt contribute to the very different workplaces women generally experience today, in contrast to what our grandmothers experienced.
But these laws are complex, span multiple pieces of legislation and often have overlapping obligations. Significantly, they put the onus on the individual who is discriminated against to act against an organisation, often while still employed there.
This creates a massive power imbalance, which coupled with the costly and stressful exercise of pursuing litigation, can be real disincentive for taking action. As the recent fallout between Amber Harrison and Seven West Media clearly demonstrates, women who complain can be subjected to terrible and unfavourable treatment. Legal limits
Our laws also have their limits. A case in point is the right of return from parental leave. While the Fair Work Act entitles women to return to their pre-parental leave job, employers can often find a way around this obligation.
During my career as an employment lawyer I’ve represented many women who have experienced pregnancy-related discrimination, particularly surrounding their return to work.
According to a 2014 n Human Rights Commission’s report looking at support for working parents, one-in-five women are made redundant upon their return to work from parental leave, while one-in-two women experience some form of pregnancy-related discrimination.
My experience acting for women pursuing legal action for these reasons suggests the real figures could be even higher.
The report identified the many different types of discrimination in the workplace ranging from negative attitudes and comments from colleagues and managers, through to loss of opportunities for further training and career advancement, a reduction in pay and conditions, and redundancy and job loss.
These types of discrimination tend to be more subtle and, therefore, are much harder to prove or connect with a period of parental leave or gender.
The impact of such discrimination can be devastating. There can be significant short and long-term negative impacts on individuals and their families – especially on their mental and physical health.
It can also hinder their career advancement and earning capacity and many of my clients struggle to understand how their employers can treat them in such a way simply because they took a break to have a baby. They also can’t comprehend why the law does not do a better job to protect them.
So what legal changes are required? Examples abroad
Sweden is a pacesetter in this area with laws that go well beyond asking organisations whether they have policies in place. Their laws actually demand that there is measurable evidence on the ground. This is what we need in .
A good place to start is demanding more stringent reporting obligations of employers to the Workplace Gender Equality Agency (WGEA). Currently, employers are required to report on a range of gender issues in the workplace. Many employers take this role seriously and find great benefit from doing so in providing further reinforcement of the need to continue to drive change internally when it comes to gender equality.
But with reporting obligations in place that lack any real bite, unfortunately, many employers still treat this important exercise as just another red tape process rather than an effort to enact meaningful change.
Employers outline their commitment to diversity in the workplace and tick a few boxes, but aren’t compelled to follow through with anything concrete. Those who don’t meet their reporting obligations usually receive a mild slap on the wrist and a public shaming at the most. Stronger powers
Bearing this in mind, there is scope for the reporting obligations to the WGEA as well as its role and powers to be strengthened and go even further. This could include requiring employers to submit more transparent data around issues such as equal pay, conditions and the numbers of women who return from parental leave and remain employed after six months. Employers should be required to address any areas of systemic discrimination that is subsequently revealed in that data.
Another element to consider is more opportunities for anonymous reporting by employees and a reconciling between what the employer portrays, and the reality of their employees’ experience. From what my clients tell me, there can be, at times, a massive disconnect between the two, even in organisations that regard themselves as leaders of gender equality.
The WGEA should also be given the tools to play a more investigative and prosecutorial role akin to that of the Fair Work Ombudsman. Complaints could be made to the agency and action taken on behalf of women, and indeed men, who are discriminated against and who have a disincentive or feel powerless to stand up to their employer.
There should also be legislated financial penalties for employers who fail to comply with their reporting obligations and a financial deterrence for employers who sack new parents.
For example, there should be a requirement to pay a premium on top of any redundancy package given to an employee who is made redundant on parental leave or within six months after their return.
These suggestions are far from sweeping changes, but no doubt some will argue they go too far or will be too hard to implement. But unless we make such changes, our workplaces will continue to fail to be places of truly equal opportunity for women.
So let’s call upon the government, and not just women, to be bold for change this International Women’s Day.
Emma Starkey is an Employment Law Senior Associate at Maurice Blackburn Lawyers. Follow Emma on Twitter: @EmmaStarkey4Continue Reading →