by Sandra Amankaviciute and Monika Zalnieriute
Image by thedailyguardian
“Small Breasts, Huge Thighs and a Big Red Box.” No, this sexualized description is not of an X-rated video, but of Australia’s first female Prime Minister, Julia Gillard, made while she was in office in 2013. And it is not an anonymous troll tweet, but a menu displayed at a fundraiser for the Liberal National Party – a coalition of opposition parties to Gillard’s Labor government in Australia’s essentially two-party system. To the women of Australia, the message was clear: even becoming the most powerful woman in the country will not protect you from sexual harassment and discrimination from your male colleagues.
Little has changed in the Australian landscape of sexual and gender-based harassment in almost a decade since the infamous menu incident: women are still objectified and sexualized in their workplaces, professional settings, and other areas of public life. Sexist hostility and intimidation have a particularly strong impact on the voices of Indigenous women in politics, Indigenous women and women of color in the political space in Australia, for example, have extensively documented their experiences.
Recently, an independent inquiry by the High Court of Australia revealed that esteemed former High Court Justice Dyson Heydon had sexually harassed six of his female associates, with conduct ranging from inappropriate comments to indecent assault. At least two harassed women reportedly left the legal profession because of Heydon’s conduct and the broken culture of normalized discrimination and harassment in Australia. Despite the High Court’s finding that his conduct was an “open secret” in the profession, Heydon denies that his behavior was predatory, stating that, if it “caused offence, that result was inadvertent and unintended.” In 2021, another Australian judge was found to have sexually harassed two women, one of whom was told “there’s not much you can do about it because he’s a judge.” Following an independent internal inquiry, the judge resigned and a claim for compensation from the court is being pursued.
These are not just one-off incidents. A report by the state of South Australia’s Equal Opportunity Commission revealed that 42.1% of 600 survey respondents had experienced sexual harassment in the South Australian legal sector (p. 56), and that the “patriarchal and hierarchical culture” of the legal profession is a driver of harassment (p. 5). An independent review in the state of Victoria revealed that 61% of women have experienced sexual harassment while working in a Victorian legal workplace (p. 28).
It is unsurprising that the 2020 Respect@Work Report (‘the Report’) by Australia’s Sex Discrimination Commissioner Kate Jenkins found that sexual harassment in Australian workplaces continues to be widespread and pervasive. The Report called for urgent legislative action to address the issue.
In July 2021, the Federal Government responded by introducing the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021, which proposed changes to several federal laws in Australia: the Sex Discrimination Act 1984, the Fair Work Act 2009, and the Australian Human Rights Commission Act 1986. Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (the ‘Respect at Work Act’ or ‘Act’) was passed in September 2021.
Despite some promising features (which we discuss below), the Respect at Work Act does not go far enough in protecting Australian women from the systemic harassment in their workplaces and beyond. In this post, we focus only on the changes to the Sex Discrimination Act and argue that the Act should have explicitly clarified that the display or use of sexist material at work can foster a sexually hostile environment for women. This omission reflects a fundamental flaw in both the Respect at Work Act and the Sex Discrimination Act: they both fail to address the fundamentally systematic nature of harassment and discrimination against women that permeates all facets of society.
Before focusing on these shortcomings, we briefly outline a few positive changes introduced by the Respect at Work Act. One is the addition to the definition of “harassment” under Division 3 of the Sex Discrimination Act (Respect at Work Act, Schedule 1, ss 29, 30, 38). Previously, the Sex Discrimination Act covered only “sexual harassment,” which was limited to when a person “makes an unwanted sexual advance, or an unwelcome request for sexual favours” or “engages in other unwelcome conduct of a sexual nature” (s 28A). “Harassment on the ground of sex,” on the other hand, is defined as harassment “by reason of” a person’s sex, a characteristic “that appertains generally” to the person’s sex, or “a characteristic that is generally imputed” to the person’s sex (s. 28AA, see Respect at Work Act, s. 60, Schedule 1, Part 1). This ensures that harmful conduct other than unwanted sexual advances or activity, such as misogynistic language, will be covered by the Sex Discrimination Act. This is a welcome development, which resembles practice in other countries; for example, under US jurisprudence, a “hostile work environment” in violation of Title VII of the Civil Rights Act of 1964 includes sexual harassment that extends well beyond the sexual element, covering gender-based stereotyping. In the Eleventh Circuit, treatment of employees as a group, even if no particular employee is targeted, constitutes a hostile work environment. See e.g. Reeves v. C.H. Robinson Worldwide, Inc.
Additionally, more categories of workers are now covered by the Australian Sex Discrimination Act under the new amendment introduced by the Respect at Work Act. Previously, the Sex Discrimination Act protected only employees and contractors (s 4), whereas the amendments now extend the scope to encompass those already defined as “workers” under section 7 of the separate Work Health and Safety Act 2011 (Cth), including subcontractors, labor hire workers, trainees, unpaid work experience students, and volunteers (Respect At Work Act, Schedule 1, s 40). Protection is also extended in the political sphere; the Sex Discrimination Act now includes MPs and their staff, state public servants (previously only federal public servants were covered), and judges (Respect at Work Act, Schedule 1, ss 33-40). These are all great additions and a timely response to the surge in reports of workplace sexual harassment by high-profile Australian judges, discussed above.
The Respect at Work Act also makes taking action against harassers slightly easier – it clarifies that sexual harassment can warrant dismissal under the Fair Work Act (Act Schedule 1, s 10), and that victimization can be considered as either a civil or criminal complaint (Act Schedule 1, s 47A). The Act also extends the limitation period for complaints to be made to the Australian Human Rights Commission from 6 months to 2 years (Act, Schedule 1, s 3), and empowers the Fair Work Commission to make orders to stop sexual harassment in the workplace (Act Schedule 1, s 24).
It’s a promising start, but there is still much work to be done to tackle harassment and discrimination against women. For example, one serious flaw of the Act is a failure to address the display and use of sexist material in the workplace, and the resulting hostile environment for women at work. The display of sexist material in the workplace has long been recognized by Australian state-level employment tribunals as creating a hostile environment for women, which itself constitutes discrimination. For example, in the 1993 case of G v R & Dept of Health, Housing & Community Services, the Human Rights and Equal Opportunity Commission asserted that
“the presence in a workplace of sexually offensive material which is not directed to any particular employee may still constitute sexual harassment where a hostile or demeaning atmosphere becomes a feature of the workplace environment.”
While there is no agreement on what “sexually offensive material” is, many women, including the claimants in this case, find objectifying images, pornographic material, and nude photographs at the workplace to be “sexually offensive.”
Similarly, in the case of Horne v Press Clough Joint Venture, the Western Australian Equal Opportunity Tribunal observed that displaying
“sexually explicit or implicit cartoons, […] photographs of naked women or men, and publications featuring such photographs or containing other lewd or sexually suggestive printed material” in a work environment creates an “unsought sexually permeated work environment” that violates an employee’s right to quiet enjoyment of their employment.[1]
For comparison, US jurisprudence on sexual harassment and the 2010 case, Reeves v. C.H. Robinson Worldwide, Inc., for example, have also recognized that under Title VII of the Civil Rights Act of 1964 a hostile work environment can be created in a workplace where “sexually explicit language” and pornography are present.
Hostile work environment with sexually explicit material contributes to a broader societal phenomenon of objectification and sexualization of women in the public sphere. are often weaponized to humiliate women and girls, and numerous mental health problems – including eating disorders, low self-esteem, and depression – have been linked to the hyper-sexualization they promote. The sexualization and objectification of women are also part of the wider structural discrimination against women, whereby public spaces are designated as a male domain; where women are mere objects and targets of derision and mockery, and their voices are unwelcome.
The Act’s complete silence on the relationship between harassment and sexist, hostile work environments is thus a missed opportunity to tackle systemic discrimination against women. To ensure that employment can be enjoyed not only by men, but by women, too, the Respect at Work Act should have explicitly clarified that the display or use of sexist and “sexually explicit material” can foster a hostile environment for women that undermines their equal enjoyment of work.
The failure to recognize the objectification and sexualization of women reflects wider problems with the Sex Discrimination Act and the Respect at Work Act: both, by confining their scope of protection, fail to address the systemic nature of harassment as part of a culture of structural discrimination against women in all areas of society and public life. For example, the 1979 Convention on the Elimination of All Forms of Discrimination Against Women (‘CEDAW’) (to which Australia is a party, along with 189 other states across the globe) covers discrimination “in the political, economic, social, cultural, civil or any other field” (Article 1, emphasis added). In contrast, the scope of Australian Federal Sex Discrimination Act protection is narrower, aiming to prohibit and/or eliminate discrimination “in the areas of work, accommodation, education, the provision of goods, facilities and services, the disposal of land, the activities of clubs and the administration of Commonwealth laws and programs” (s 3, emphasis added). And the Respect at Work Act is even narrower – it confines its aims to targeting discrimination and harassment in workplace settings only.
This sends two problematic messages: first, that women are legitimate targets of harassment in some areas of public life but not others, and second, that harassment in different areas of public life is unrelated to harassment that occurs in the workplace. Both of these messages are wrong. Harassment is ingrained and part of structural discrimination against women in all areas of society and public life. Since discrimination against women, including sexualization and objectification, is normalized in public life outside the workplace – as is evident from the Julia Gillard menu incident – it is naïve to expect that these attitudes do not influence and, in some cases, encourage harassment and discrimination within the workplace.
Thus, although the Respect@Work Report that prompted the new Act was itself confined to examining discrimination of women in the workplace, addressing the connection between women’s treatment in public life and their treatment at work is essential to ensuring effective protection of women in the workplace and beyond. Systemic and structural social harms demand systemic and structural changes, not merely piecemeal amendments.
And it is possible to find alternatives to piecemeal amendments. In fact, another proposal in Australia, the Sex Discrimination Amendment (Prohibiting All Sexual Harassment) Bill 2021, was introduced by independent MP Zali Steggall in March 2021. That bill proposes to amend
“the Sex Discrimination Act 1984 to provide a general prohibition on sexual harassment, such that it will be unlawful for a person to sexually harass another person in any setting or circumstance (emphasis added).”
While it is limited to sexual harassment only (and thus might not cover the “harassment on the ground of sex”), it is an example of how all types of harassment could be prohibited in all areas of public life: any setting or circumstance. However, this Bill is extremely unlikely to become law. As a “private member’s bill” (a bill introduced by an individual legislator, and not on behalf of the Government), it is unlikely to gain enough votes to pass through the Parliament without the Government’s support. And if the Australian Federal Government had political will to support a prohibition of harassment in any circumstance, it would have done so in its own Bill, which has now become the Respect at Work Act.
The Federal Government’s unwillingness to attempt structural and systemic change is further evidenced by the weak, aspirational language in both the Sex Discrimination Act and the new Respect At Work Act. Currently, the Preamble of the Sex Discrimination Act states that there is a need to “prohibit, so far as is possible, discrimination […],” and the Objects section explains that the Act seeks to “… to eliminate, so far as is possible, discrimination […]” (s 3; emphasis added). The Respect at Work Act introduced an additional subsection into the Objects clause, stating that the Act aims to achieve “so far as is practicable, equality of opportunity between men and women” (Schedule 1, s 31; emphasis added).
These caveats imply that the total prohibition and elimination of discrimination against women are not possible or achievable. Yet they do not reflect the substantive equality envisioned by CEDAW, which, as set out above, aims to eliminate “any” discrimination. Furthermore, Australia’s most significant piece of anti-discrimination legislation – the Racial Discrimination Act 1975 (Cth) – does not confine its aims to what is “possible” or “practicable.” These qualifications turn the amendments introduced by the Respect at Work Act, and the Sex Discrimination Act itself, into a limited aspirational declaration rather than a force for change. They also water down the Government’s commitment to change and downplay the magnitude of the pervasive and systemic nature of harassment and discrimination against women.
In sum, to succeed in eliminating harassment and discrimination against women, the harassment reforms in Australia must go much further. They must recognize that the creation of a “sexually hostile” working environment through sexualization and objectification of women is in itself a form of discrimination. The reform must connect discrimination and harassment of women within workplaces to the wider society, public life, and sexist culture that persist outside of the workplace. And, finally, it must recognize that total elimination of discrimination is not only “possible” and “practicable,” but necessary.
[1] Horne v Press Clough Joint Venture [1994] EOC 92-591, at 77, 175.
*****
Sandra Amankaviciute is a PhD Researcher at Faculty of Arts, Design & Architecture, and an Associate at Australian Human Rights Institute, UNSW Sydney, Australia; s.amankaviciute@unsw.edu.au.
Monika Zalnieriute, PhD, is a Senior Lecturer and Australian Research Council DECRA Fellow at the Faculty of Law and Justice UNSW Sydney, and a Senior Fellow at the Law Institute of Lithuanian Centre for Social Sciences; m.zalnieriute@unsw.edu.au.
The authors would like to acknowledge and pay respects to the Traditional Custodians of the land on which they work and live, particularly the Bedegal, Bidjigal and Gadigal Peoples, and their elders, past and present. The authors also thank Australian Government Research Training Program for PhD Scholarship; Australian Research Council for research funding under Discovery Early Career Research Award scheme (project number DE210101183), Emily Hunyor for her excellent research assistance, and editors of JLG for their insightful and constructive edits, which greatly improved the article.