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LST2/3DAL

Discrimination and the Law

The Major Essay

1. Critically discuss discrimination and anti-discrimination

measures using the following quote:

“The dichotomy between formal and substantive equality not only graphically
highlights the elusiveness of the meaning of equality per se, but it also goes
to the heart of Western liberalism. It is in the interests of the liberal state to
obfuscate the meaning of equality and eschew any expression of aims which
might endanger its legitimacy in the eyes of its diverse constituents. In any
case, the liberal state cannot divorce itself from legal formalism with which it
is inextricably intertwined. Therefore, it is the concept of formal, not
substantive, equality which is a central tenet of liberalism” (Margaret
Thornton in The Liberal Promise, 1990).

The dimension of our society focuses on the concept of traditional liberalism

which promotes democracy and freedom (Thornton, 1990:13). Liberal views of

society perceive the economy as a capitalist which is a self-regulating market and

shares the idea of no unnecessary interruption in individual affairs. Similarly, the

concept of equality is incorporated within the ideals of liberalism which is

fundamental and indivisible to basic human rights (Equal Rights Trust, 2007:5).

Consequently, the liberal society disregards equality as part of the distributive

justice theory as it derogates the liberal democratic process and imposes a burden

on the state as well as the individual autonomy (Equal Rights Trust, 2007:5).

Moreover, the traditional approach to equality is constituted within the set of

formal rules which combined with liberalism denotes inequality and discrimination
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according to Margaret Thornton (Thornton, 1990, p). One of the most important

theoretical understandings of equality comes from this idea where assumption is

based on ‘treating like cases alike’. Under substantive equality on the other hand,

rights and opportunities may be ascribed on the basis of personal or group

characteristics such as sex or race which is reliance on differences as opposed to

sameness (Graycar, 2004:5). Considering the diverse range of opinions towards the

concept of equality it can be demonstrated that a step to end this argument can be

found by really examining the gap between formal and substantive equality which

is a real challenge in itself (Kekes, 1997, p 89). Unravelling the actual gap requires

eliminating the significance of liberalism as a part of societal norm in itself or

placing restrictions as to what liberalism should be comprised of. However, in the

long run equality is put at stake where certain groups are eradicated of basic human

rights to which everyone should be entitled to (Redman & O’Connell, 2000:3).

Tensions between equality and gender are a predominant feature of the liberal

society where rather than a reflection of biologically given sexual differences;

gender is socially constructed (Hewitt, 1998:1). Within this essay I will argue

against the fundamentals of liberal society which traditionally is focused towards

equality of outcome embedded within the norms of formal equality with reference

to the issue of pay equity between men and women. Despite the endeavor of formal

equality measures and the ideals of achieving equality in eliminating

discrimination within the public sphere, in reality, women continue to get a lower

wage compared to men. Furthermore, the distinction between formal equality and

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substantive equality will be explored in detail so as to determine how we can go

about maintaining equal pay between men and women of all societal levels on a

balanced scale.

The Anti-discrimination legislation provides an understudied regulatory response

to inequality within the contemporary society (Redman & O’Connell, 2000:3).

Moreover, its effectiveness in achieving its stated goal of eliminating

discrimination has been significantly limited by a formal regulatory approach

Despite its inadequacy the symbolic power of law and the informal or soft

regulatory mechanisms available under the Act have been used to develop a norm

of non discrimination that gives the formal prohibition much greater force than it

otherwise would have (Smart, 1989:1). In doing that the Sex Discrimination Act

1984 (Cth) undertakes the concept of equal remuneration between men and women

where it aims to eliminate discrimination and sexual harassment and promote

greater equality in all aspects of the Australian community (Maddison & Partridge,

2007:15). Under the act individuals can lodge a complaint to the Human Rights

and Equal Opportunity Commission if instances of unequal pay arise due to the

gender of that person (HREOC, 2008:1). The Act possesses the discretion to

prohibit direct and indirect discrimination on the grounds of sex resulting in

unequal remuneration between men and women (SDA, 1984:4). This authority is

further strengthened by giving individuals the power to refer complaints only to the

Human Rights and Equal Opportunity Commission if sex discrimination was a

factor in the treatment giving rise to the complaint (HREOC, 2008:1). Along with

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this the concept of equal pay includes all component of remuneration such as

superannuation, leave, bonuses, discretionary payments, allowances, performance

bonuses, commissions etc (SDA, 1984:99). Apart from that there are also monetary

damages to complainants where public hearing has taken place which is aimed at

restoring the position of the complainant as it was previously (SDA, 1984:3).

Overall, these measures of formal regulatory approach are consistent with the

welfare of the individuals being affected in terms of pay equity at federal level

(ACCI, 2002:1). On the other hand, the Victorian Equal Opportunity Act 1995

provides human rights based framework in relation to gender discrimination (EOA,

1995). So far, the Act has been successful in raising awareness and preventing

some forms of discrimination including gender and the pay gap differentials

between men and women (URCOT, 2005:5). Together with this, the Equal

Opportunity and Human Rights Commission is Victoria’s leading human rights

body responsible for administering the Equal Opportunity Act 1995 (EOA, 1995).

The Act possesses the ability to eliminate pay inequity by administering an

employer to consider all relevant facts and circumstances in determining whether

to accommodate an employee’s family or carer responsibilities (EOA, 1995:3).

This can eliminate the pay gap differentials through the employer assessing a

women’s role as a carer and a worker ultimately. Within a Human Rights context

the act has achieved considerable heights through an increase of formal complaints

made to the Human Rights and Equal Opportunity Commission (HREOC, 2007:1).

Moreover, the act specifically distinguish between two forms of major

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discrimination being direct and indirect discrimination which has the advantage of

being more enforceable and more specific in terms of outcome leading to

substantive equality (EOA, 1995:7). On the contrary, the Equal Opportunity Act

1995 (Vic) is an independent statutory authority, accountable to the Victorian

Parliament, that promotes equal opportunity and works to eliminate unlawful

discrimination in Victoria.

Legislative measures to radicalise the concept of inequality within the society

focus on the process rather than the outcome (Thornton, 1990:13). They also tend

to assume that inequality can be achieved through treating everyone the same in

terms of the pay gap arising between men and women. However, in reality the

position of women in society is quite different to the way men are perceived in

terms of employment and labour. According to the International Labour

Organisation complete equality of opportunity and treatment of men and women in

the workforce cannot be achieved without broader social change because of the

“excessive burden” of caring and household responsibilities (HREOC, 2003:4).

This can only be enforced within the workforce industry if sufficient attention is

shifted towards the role of women balancing between work and family

responsibilities. The Australian Bureau of Statistics in relation to gender pay gap

announced that within the past decade the gap has been widened by 2 percent

(ABS, 2008:1). The report found that as of 2004, females earned only 92 per cent

as much as their male counterparts, resulting in a gender wage gap of 8 per cent

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(The Age, 2005:1). Ten years earlier the gap was only 6 per cent. Overall, the

average weekly wage for females was $611.50 - 68 per cent of the average weekly

total earnings of males, which was $897.50, but that includes women who work

casual or part-time and those who are not paid workers (The Age, 2005:1). One of

the most important factors contributing to this gap is the parenting responsibilities

where it is assumed that a woman is suitable for patriarchal duties while a man is

the ‘breadwinner’ (HREOC, 2005:5). Therefore, by taking this into account

employers tend to discriminate against women which have become part of a

democratic and just society (HREOC, 2005: 143). Statistics are even worse for the

7 percent women working in top earning positions are paid up to 50 percent less

than men at the same level according to a research conducted by the Equal

Opportunity for Women in the Workplace Agency (EOWA, 2008: 1)). This is

deeply concerning as it demonstrates that despite legislative reforms women in top

positions are denied equal pay due to occupational segregation, family

responsibilities and gender stereotypes according to Federal Sex discrimination

officer Elizabeth Broderick (HREOC, 2008:1). Thus, formal equality approaches

have done little to enable women to overcome past inequalities and structural

disadvantages (ALRC, 2003:2). Furthermore, the norm of liberalism is such that its

implementation of formal equality measures has much to do with the concept of

individualism (Thornton, 1990:13). Therefore, the results are obviously certain

where gender pay gap is increasing due to the anti-discrimination laws adopting

individual measures rather than a collective one. Although there is complaints

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system such as through the Human Rights and Equal Opportunity Commission the

Equal Opportunity Act 1995 (Vic) is inadequate to address a collective aspect of

women’s position in society (Charles worth, 2000:1). This is to say that although;

the anti-discrimination laws are embedded with effective laws to address

discrimination, the extent to which these laws are to be implemented within a

liberal society is highly controversial.

So far within this essay it was argued that the ideals of formal equality have not

succeeded in closing the pay gap between men and women. Furthermore, it will be

suggested as to what has been done to achieve a more substantive element of the

anti-discrimination laws through strengthening the position of women in terms of

employment in the wider society. An inquiry conducted into the effectiveness of

the Sex Discrimination Act 1984 (Cth) in eliminating discrimination and

promoting equality revealed that the act specifically provides protection from

discrimination if there are instances of direct discrimination due to family

responsibilities (Equal Opportunity Commission, 2007:5). However, there are also

indicators of indirect discrimination present within the workforce such as inflexible

work policies and practices to which workers with family responsibilities will be

discriminated against. Therefore the inquiry concluded that in order to remedy the

gap between men and women family responsibilities provisions into the sex

discrimination act needs to be included (Equal Opportunity Commission, 2007:7).

This will ensure that employers within the workplace are accommodating to the

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needs of both men and women in bringing about flexible work arrangements so as

to promote gender equality. Reforms introduced in September 2008 within the

Equal Opportunity Act 1995 (Vic) makes it unlawful for an employer to

“unreasonably refuse” an employee’s request for flexible working arrangements

where the request is related to their family responsibilities (EOA, 2007:4).

However, these provisions were not sufficient enough to close the gap as the

Australian Bureau of Statistics showed a 16% pay gap between men and women

within the same year in Victoria (Business Victoria, 2008: 1). On the other hand,

the inquiry conducted by the Senate into the effectiveness of the Sex

Discrimination Act 1984 also put forward a recommendation to extend the powers

of the Human Rights and Equal Opportunity Commission so as to strengthen the

formal complaints enquiry and consider a collective approach in terms of

enforcement (Equal Opportunity Commission, 2007:7). This provision can initiate

a difference into the way enquiries are conducted by the HREOC in terms of the

gender pay gap but can also lead to power imbalance (Graycar & Morgan, 2004:5).

Overall, strengthening structural and institutional arrangements may not be the best

solution to achieve substantive equality as they still possess the element of formal

processes to achieve equality. In an attempt to reduce the gender pay gap

“institutionalised communitarianism cannot be compared adequately with

democratic majoritarianism within the liberal state, as the latter operates to

individualise interests further and, in doing so, tends to obscure the oppressiveness

of power” (Thornton, 1990:20). Perhaps, there needs to be some serious attempts

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to achieve a substantial element of achieving equal pay through making sure that

comparisons do not exist between men and women doing the same level of job

within the private sector which is considerably higher (Wooden, 2008:12).

Astounding figures have been found where on average women earned just 65

percent of what men earned revealing a 35 percent pay gap (Wooden, 2008:12).

Such comparisons can be quite difficult to overcome as the private sector is not

susceptible to any legislative or regulatory change with pay being negotiated on an

individual basis (Wooden, 2008:12). It is within the interests of the liberal society

to overcome this issue where a male dominated society pursue their capacity as the

‘breadwinner’ to prejudice the role of women in society. This has been suggested

by Lucinda Finley in the Notre Dame law Review where she suggests that “Male

reasoning is dualistic and polarised thinking because men have been able , thanks

to women to organise their lives in a way that enables them not to have to see such

things as work and family as mutually defining” (Finley, 1989:231).

The power of law is such that it “embodies a claim to a superior and unified field

of knowledge which concedes little to other competing discourses which by

comparison fail to promote such a unified appearance” (Smart, 1989:4). Carol

Smart defines law as problematic in terms of reducing the disparities for women in

general as the law itself favour individuals with power (Smart, 1989:4). In the

following paragraph I will attempt to show how the discourse of law has been

ineffective in terms of reducing the gender pay gap. One of the major reasons

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contributing to this problem is the continuing gap between women's formal and

substantive equality and their absence from power and political decision-making

which is indicative of both attitudinal and structural discrimination. In order to

examine the gap between formal and substantive equality it is necessary to look at

the wider structural realities currently in place responsible towards the pay

differentials between men and women. One of the greatest structural challenge

remains in terms of achieving a work and family balance which needs to be

implemented both in legislation as well as the wider society (Equal Opportunity

Commission, 2007:7). This also has to do with the role women play within the

society which can be shaped by enhancing public awareness and motivating

employers to initiate flexible work arrangements. Moreover, the formal equality

approach which considers men and women the same is not sufficient enough to

address this issue, but rather acknowledgement of the difference between men and

women is also vital (Mackinnon, 1980:263). Effectiveness of this approach is that

it considers women as different individuals possessing responsibility towards their

work and family. However, the formal equality approach does not consider this

difference but rather suggest that men and women are exactly the same having

equal rights and are not distinguished in terms of work and family responsibilities

(Mackinnon, 1980:263). On the other hand, Catherine Mackinnon argues that the

difference approach is simply variant of the formal equality or gender neutrality

approach and what they have in common is that both use men as the benchmark:

the first requires women to be the same as men while the second stresses women’s

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differences from men” (Mackinnon, 1980:264). Moreover, Catherine asserts that

neither formal equality or substantive equality possess the potential to achieve

equality as there exists a distribution of power between men and women that is

responsible for inequality (Mackinnon, 1980:264). This suggests that dominance of

certain laws; policies and practices embedded within the liberal society are held

liable for the disadvantaged position of women in the workforce (Graycar and

Morgan, 2004:264). Therefore, it is important for women to enhance their position

within the workforce so as to sustain the challenges to the power of law which can

increase resistance to law and may affect a shift in power (Smart, 1989:25). It is

not about winning over males but rather creating equal recognition between the

two sexes in all societal domains as suggested by Elizabeth Broderick (The Age,

2007:4).

In achieving a more successful implementation of equality and moving further

towards closing the gender wage gap, one of the areas that could be strengthened is

the relationship between the various elements of the system. Strengthening the

anti-discrimination laws is a starting point, however there needs to be a realistic

focus towards structural disadvantages. Of utter importance is women’s role in

balancing between family responsibilities and work commitments which needs to

be considered by employers. As a result, this interrupts progression and affects

promotional opportunities which lead to a sacrifice of talent to meet family

responsibilities. Again, this denotes towards the norms of western liberalism where

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it supports the idea that every member of society should be free to maximise his or

her talents according to personal predilection (Thornton, 1990:13).

Retrospectively, this task is given to the legal adjudicators who blindly transform

the idea of equality into a set of formal measures rather than releasing a more

substantial element. A substantive response to the issue of pay inequality can result

in more productive outcomes as they generally concentrate on the outcome rather

than processes. On the other hand, as Catherine demonstrates that the power

imbalance between men and women is embedded within the liberal society

resulting in inequality between men and women (Mackinnon, 1980:265). The

biggest source of gender pay differential is amongst the highest paid private sector

employees which have the ideals of liberalism. Thus, the meaning of equality in a

liberal society is relevant in order to examine the gap between formal and

substantive equality. According to my opinion gender pay gap is a human rights

agenda that needs to be addressed by taking into consideration several human

rights instrument in terms of pay equity. The way to go about achieving this can be

challenging as it means disrupting the norms of liberalism central to the modern

society but at the same time can be crucial to the position of women in the society.

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