Discrimination law has limited capacity to address the gender pay gap, writes legal expert Alice Orchiston.
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.
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.
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.
Organisations such as 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.
Alice Orchiston is an Associate Lecturer in Law at the University of Sydney. This article was originally published on The Conversation.
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