Why aren’t we doing more to protect women in the workplace?

Research paints a disturbing picture of the pervasive discrimination and costly barriers to legal action still faced by women in Victoria.

In 1977, Victoria became one of the first Australian states to prohibit sex discrimination in the workplace, beating federal legislation by almost a decade.

Now women are protected from discrimination based on sex, pregnancy, marital status, breastfeeding, and family responsibilities.

Yet despite these safeguards, new research by Monash Business School’s Associate Professor Dominique Allen has exposed the bleak reality for many women.

In two ground-breaking papers, A/Prof Allen’s research reveals the ways in which women are experiencing pregnancy discrimination in the workplace, and the prohibitive barriers women face to taking legal action.

They are inequities she is determined to address.

“The laws have been around for decades, yet women are still experiencing suffering in the workplace,” A/Prof Allen said.

“We’ve seen some significant changes to sex discrimination laws recently, but there’s more to do to promote equality for women at work.”

‘It was heartbreaking to hear’

Last year, A/Prof Allen and Monash Business School colleague Adriana Orifici conducted a study into how pregnancy discrimination manifests at work.

The pair analysed data from 42 anonymous callers who contacted not-for-profit legal centre JobWatch after experiencing discrimination based on pregnancy or breastfeeding. 

The study found women faced bullying, dismissal or redundancy, encountered changes in employment status or terms, and experienced disciplinary action when they disclosed their pregnancy. 

The discrimination occurred during pregnancy, parental leave and re-entry into the workforce, affecting women regardless of length of service, seniority, employment status or industry.

As part of the study, A/Prof Allen also interviewed some of the women.

She said it gave her a disturbing insight into the problem.

“I was upset to hear about how their employers had treated them and that they weren’t agreeing to simple requests, like not having to carry heavy equipment or asking to travel less because of morning sickness,” she said. 

“Their stories were, at times, heartbreaking to hear.”

Research sparks reform

When the Federal Government was consulting on changes to labour laws last year, A/Prof Allen and Ms Orifici decided to act.

“Our research shows the difficulties women face in having their pregnancy accommodated,” she said.

“The Fair Work Act gave some employees the right to request flexible working arrangements but not pregnant workers.”

In their submission to the Senate Standing Committee, they argued pregnant women should have the right to request flexible working arrangements and that this would enhance equality at work for women.

Pregnancy was subsequently included in the Secure Jobs, Better Pay Bill, which comes into effect on 6 June this year. 

“Women won’t necessarily be asking for costly changes to their working arrangements,” A/Prof Allen said.

“What they want might be as simple as working at different times of the day, standing less, more frequent bathroom breaks.”

Costly barriers to legal action remain

According to Australian Human Rights Commission reports, pregnancy discrimination and workplace sexual harassment persist.

Yet A/Prof Allen’s research revealed that between 2012-2021, only eight sex discrimination claims reached a full hearing in the Victorian Civil and Administrative Tribunal and just 10 reached the federal courts.

So why aren’t more women pursuing claims?

A/Prof Allen and Ms Orifici decided to find out.

In their latest collaboration, they interviewed Victorian lawyers who have run sex discrimination claims, asking them about the barriers women face in taking legal action. 

The research revealed the most significant deterrent to litigation is the cost.

“By the time they seek legal advice, these women might have lost their job or have other debts, and the cost of taking legal action is prohibitive,” A/Prof Allen said. 

“And the risk is greater for women who use federal anti-discrimination laws because if they lose, they might have to pay the other side’s costs as well as their own – not to mention the emotional cost of what might be a long, drawn-out process.”

Given most women want to put the experience behind them, A/Prof Allen said it was no wonder they abandoned their claims or settled confidentially.

Shifting the burden from women

A/Prof Allen said it’s clear more must be done to support women to take legal action to address workplace discrimination.

“The research highlights the burden placed on the women who experience discrimination in the workplace to do something about this by pursuing legal action to address their own experience,” she said.

“But many women do it to change things in the workplace so that another woman doesn’t have to endure what they did.”

She believes what is needed is a statutory body to take claims on behalf of women. 

“We have this for workplace health and safety and in other areas, like competition law and corporate law, but not for equality,” she said. 

It’s an idea she plans to investigate.

“I’m interested in improving the current model and in developing mechanisms for placing the obligation for tackling equality on the bodies which are best placed to do this – namely a statutory body and employers,” she said. 

Published on 23 May 2023