Back to the future for discrimination laws: Rayner


Back to the future for discrimination laws: Rayner

Anti-discrimination laws are being pared back by judicial treatment which was returning them to where they were 30 years ago, according to acting Western Australian Equal Opportunity Commissioner Moira Rayner.


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Anti-discrimination laws are being pared back by judicial treatment which was returning them to where they were 30 years ago, according to acting Western Australian Equal Opportunity Commissioner Moira Rayner.

Rayner, a discrimination lawyer and former Victorian Equal Opportunity Commissioner from 1990 to 1994, said equal opportunity laws had been a 'Zen stick', reminding employers it may be discriminatory to treat people differently, but not punishing them for doing so.

Speaking at the Macquarie Graduate School of Management's Women, Management and Employment Relations conference in Sydney today, she said two recent cases showed a 'significant' move towards focusing on a causal connection between the less favourable treatment of a worker and the ground of discrimination.

Rayner said the Victorian Supreme Court decision last year in Kapoor v Monash University, where a Brahman academic did not have her contract renewed partly because the university considered her too reserved, was a case in point (see 8/2002).

While Kapoor argued race discrimination, saying her disposition was a result of her race and religion, the Court, sitting as a Court of Appeal, found the University had not known the disposition was caste-related, and therefore had not racially discriminated against her.

In another case, this time disability discrimination, a full bench of the Federal Court overturned a HREOC finding that a boy had been expelled from school because of anti-social and violent behaviour arising from a disability.

Rayner said while these decisions would not have the same impact in all states of Australia, they were important because they allowed the connection between an allegedly discriminatory act and the grounds of discrimination to be broken.

The 'fine distinctions' in both cases could have been avoided, she said, through addressing any potential problems early and talking them through with those affected.

The Schou case

'These cases are an early indication that appeal courts are willing to pare down the scope of anti-discrimination law,' she said. Rayner said EEO in the 21st century was characterised by employers looking for a technical defence to a possible discrimination claim, and often finding it.

This happened in the case of the Victorian Hansard sub-editor, who had to go to great lengths to fight a refusal to accommodate her request to work from home while caring for a sick child (see 141/2002), she said.

'[Employers] might characterise a refusal to provide flexible working arrangements as not so much less favourable treatment of a working parent than a legitimate denial of a demand for a favour or special benefit not available to other staff,' she said.

'It may be easier to say women's requests for part-time work, or family-friendly hours, or the elimination of blokey hours, conditions or cultures are not linked to their sex. After all, quite a lot of career women are not having children these days, or having them later, because they are adopting masculine models of career development and socialisation.'

Yet in her experience, Rayner said, rights were only realised when they became mainstreamed and normalised, 'when the moral claims become internalised'. After more than 25 years of equal opportunity debates and policy, it was time to find a different way to talk about changing workplace culture and normalising EEO, she said.

She proposed a philosophical shift towards building ethical workplace cultures as the way to address the issue, with equal opportunity part of the ethical framework. She said this was especially relevant given the many recent corporate failures, and their 'dramatic effect on trust and confidence'.

'Ethical organisations would be, by definition, responsive to discrimination issues, so it would be unethical to fail to take them into account.

'If we had ethical workplace policies, it would be unethical to force women out of work, fail to provide the necessities of a decent life for children and relatives. It would be unethical to consider a worker as less than a human being with relationships and a life beyond your particular workplace.'

Steps to changing a culture

Rayner said a replacement was needed for both the 'stick' of equal opportunity law and the carrot of diversity and awards.

'We now know that compliance with anti-discrimination law or equal opportunity rhetoric is a dangerous waste of time,' she said. 'It goes through the motions and diminishes its own ethical heart. It encourages hypocrisy and symbolic compliance while reinforcing another set of values and rewarding silence.'

In order to respect and encourage workers, Rayner said organisations needed to:

  • Commit to change from the top, with a charismatic leader ensuring actions followed words.
  • Allow outsiders to review changes to attitudes, and not to be defensive about the results. This again required 'real leadership'.
  • Join up the links between stakeholders, as what an organisation did in one area would affect all other areas.
  • Be honest, and take seriously those who made complaints.
  • Be accountable.
  • Be thoughtful - 'an ethical organisation is a work in progress', Rayner said, 'It can never afford to be comfortable about itself.'


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