Indirect sex discrimination

Summary

This MPhil project focuses on ‘Indirect Sex Discrimination under Australian discrimination law - Assessing the Onus of Proof and the Reasonableness Test’.

Researcher

• Quynh Ngoc Vu

Quynh is currently a Master of Philosophy student in Business Law and Taxation Department. Her interests lie in employment law, sex discrimination law in the workplace and human resources management. She completed her Bachelor’s Degree in Law at Ho Chi Minh City University of Law, Vietnam with a thesis relating to zeroing methodology in the United States’ anti-dumping law and a research project regarding virtual properties in online games under Vietnamese civil law. She also has professional experience as a Human Resources Management Executive for a foreign bank in Vietnam. She is looking forward to working and developing herself in the professional environment focusing on employment matters in Australian and Vietnamese regulations.

Supervisors

• Dr Dominique Allen
• Professor Carolyn Sutherland

Project background and aims

In Australia, the introduction of the sex discrimination laws can be traced back to the 1970s with the adoption of legislation prohibiting sex discrimination in South Australia, New South Wales and Victoria. However, it was not until 1984 that Australian Federal Sex Discrimination Act 1984 (Cth) (SDA) was enacted to implement the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Although this legislation has undeniably created a positive impact on the promotion of gender equality, especially in the workplace, there are concerns about its effectiveness in achieving its legislative aims. The heavy onus of proof borne by the complainant and the broad interpretation of ‘reasonableness’ as the respondent’s defence are those attracting much attention.

The thesis firstly aims to critique the effectiveness of the SDA in achieving its legislative aims after 34 years in practice focusing on the burden of proof. The thesis will evaluate the current requirements to prove indirect sex discrimination under the SDA as well as assess judicial interpretations of the ‘reasonableness’ of the facially neutral requirements that are imposed by employers and which have a disadvantageous effect on employees. From this basis, it aims to suggest for the design of a mechanism that could assist complainants to gather and assess evidence to prove indirect discrimination claims. Additionally, proposes legislative reforms to provide additional guidance about the meaning of ‘reasonableness’. These reforms would provide greater clarity to the parties and assist the court in interpreting the indirect discrimination provisions.

Methodology

This project is conducted using doctrinal legal analysis. It looks at the provisions of the Australian Sex Discrimination Act 1984 (Cth) with a reference to other State and Territory discrimination laws. The project will also draw attention to the practice of the United Kingdom’s questionnaire procedure and its impacts on reducing the burden of proof. Findings from analysing this procedure will be used as a reference for legislative reform proposals of the Sex Discrimination Act 1984 (Cth).

Output

Introduction of the project and the historical review on sex discrimination laws in Australia have been presented at the Monash Business School Doctoral Colloquium on 28-29 November 2018.