..

The Conversation

  • Written by Alice Orchiston, Associate Lecturer in Law, University of Sydney
For women fighting the gender pay gap discrimination law is limited

If women discover they are earning less than their male counterparts for the same jobs, their legal avenues for pursuing equal pay are limited. It’s difficult to prove and costly to litigate.

The federal Sex Discrimination Act makes it unlawful for an employer to provide less favourable terms and conditions of employment to an employee “because of” that employee’s sex. Each state and territory also has its own laws prohibiting sex discrimination in employment.

Read more: It’s not just women at the top who are paid less than men

The first step for women in these cases is to make a complaint to the Australian Human Rights Commission or the relevant state or territory equivalent. This kicks off proceedings. The usual outcome for successful discrimination cases is damages (compensation).

But as the recent case of Carrie Gracie, a senior correspondent at the BBC, shows it’s difficult even to discover what your male counterparts are being paid in the first place. Gracie only discovered she was being paid significantly less than male colleagues for performing the same work after the BBC published a list of its top-earning staff. This highlights the importance of transparency.

Cost and evidence barriers

Many women don’t actually know if they are being paid less than comparable male staff. This is because most employers do not make pay records publicly available for people to compare.

Sex discrimination cases are also very difficult to prove. The burden of proof is on the claimant.

In practice, it’s generally much easier for the employer to point to reasons unconnected with gender to explain a pay discrepancy, than it is for a claimant to prove that they were paid less than a person of a different sex in the same circumstances.

The best kind of evidence is a blatant statement from the employer. For example, a statement made to a female worker that she does not need as much pay as her male colleague performing the exact same role because “he’s the breadwinner for his family”.

Where this kind of evidence is not available, circumstantial evidence can be used to show that gender was the “real reason” for the different treatment. For example, evidence that the employer made pejorative statements about women, combined with evidence that the same role was previously held by a male employee of equal experience and skill, who was paid more.

While pay records and other evidence can be obtained in the course of litigation, bringing legal action is difficult and potentially risky. Litigation is likely to lead to a breakdown in the relationship with an employer. Bringing legal action could also make it harder for the employee to find a new job.

Due to the complexity of bringing a claim, the person complaining would need legal representation. Legal Aid, low-cost or pro bono representation is generally not available due to chronic underfunding and high demand. This means that legal action is only realistic for women who are high-income earners or have access to substantial funds.

Depending on where the case is heard, the claimant could be liable to pay the employer’s legal costs, in addition to their own legal costs, if they lose.

The extent of the problem

The absence of case law and data on pay-related discrimination makes it difficult to estimate the extent of the problem.

Of course not all discrimination complaints proceed to hearing – many are resolved at conciliation, or may be withdrawn prior to conciliation. Complaint-handling bodies such as the Australian Human Rights Commission report general statistics only.

For example, the latest Australian Human Rights Commission Annual Report states that 385 complaints relating to workplace sex discrimination were received in 2016-2017, with no breakdown of how many (if any) of these complaints related to pay.

There are better options for lasting change

Anti-discrimination laws alone cannot close the gender pay gap. This is because they only provide individual remedies – even if a woman can prove that she has been discriminated against, a court or tribunal can’t impose an order on the employer to change its pay practices or back-pay other people’s wages.

Read more: It’s too soon to celebrate a narrowing gender wage gap

Organisations like the Australian Human Rights Commission should be equipped with independent enforcement powers and the resources to proactively audit and prosecute employers who breach anti-discrimination law. This could help to foster systemic change, and overcome the difficulties that individual women face in bringing complaints. But to date, the federal government has rejected calls to award these powers.

Another important way to strengthen employer accountability would be to end pay secrecy. Requiring employers to make their pay records publicly accessible or accessible to employees across the same organisation would create greater transparency and a basis for women to assess their pay, which in turn could facilitate negotiation or legal action.

Authors: Alice Orchiston, Associate Lecturer in Law, University of Sydney

Read more http://theconversation.com/for-women-fighting-the-gender-pay-gap-discrimination-law-is-limited-89918

Politics

Central and North Queenslanders overwhelmingly back coal sector

More than 80 per cent of young people in Central and North Queensland believe the coal sector and the jobs it creates are critical to the state’s economy, particularly regional Queensland.   Mi...

Senator Canavan - avatar Senator Canavan

AWU National Secretary Daniel Walton on steel industry

Ambitious expansion plans make mockery of those who wrote off Australian steel industry GFG Alliance's planned rejuvenation of the Whyalla steelworks, and the Australian steel industry more generall...

Media Release - avatar Media Release

George Neophytou supports roads funding and more

Independent candidate for Gippsland East George Neophytou has pledged to support completion of duplication of the Princes Highway between Traralgon and Sale and to upgrading of the Sale alternative ...

George Neophytou Media Release - avatar George Neophytou Media Release

Business News

10 Excellent Business Ideas for Young Entrepreneurs in 2019-2020

Top 10 Low-Budget Business Ideas for Students in 2019 Whoever said that you should wait for 10 or even more years after your graduation to launch your own business? 69% of US citizens start their ...

Elsa Avendano - avatar Elsa Avendano

The 1-Page Marketing Plan

SKIP BUSINESS SCHOOL. READ THIS NEW BOOK INSTEAD. Named as one of the “10 best marketing books for small business owners” by The Huffington Post.   MEDIA RELEASE: MELBOURNE, DECEMBER 13, 2018 —...

Claire Marshall - avatar Claire Marshall

How to Empower Your Employees in 2019

Employee empowerment is the focus of many employers in this present day. The reality is that although you may hire competent and qualified professionals, you still need to invest in building them up...

News Company - avatar News Company

Travel

Road Trip On Your Mind? Keep These Aspects In Mind As Well

Take a Road Trip! The great road trip. Movies are made of this type of freedom. The roads are calling and you are feeling the need for a road trip. Join millions of other people who enjoy the great o...

News Company - avatar News Company

Best Short Term Accommodation in Brisbane

Brisbane, the capital city of Queensland in Australia is known for its museum and Science center. With a lot of creative spaces and gardens on the riverside, it is a magnificent and popular destinat...

News Company - avatar News Company

Best Short-term Accommodations in Sydney

If you are looking to spend a night or two in the sprawling city of Sydney, you might be in need of a lodging place or hotel to stay. We would like to give you here a list of the best short term acc...

News Company - avatar News Company