Women And The Law

Women And The Law

Through out the years there have been many factors that affect the operation of the
legal system to help generate just outcomes for women. Historically, women have
always held an inferior place to men, but during the 20th century this concept has
changed considerably. The status of women has changed in terms of political
suffrage, jury duty, economic rights, property rights, social security and minority
groups. However, women still suffer disadvantages and to try to resolve particular
problems women still confront legal and non-legal mechanisms. The mechanisms are
used to resolve political and economic equality in accessing education, training
development, gaining promotion, equal pay and sexual harassment. The legal and non-
legal mechanism include trade unions, lobby groups, welfare groups and government
agencies. Affirmative action and anti-discrimination legislation are also used to
try to eliminate women being discriminated against and ensure just outcomes for the
individual.

Womens status under Australian law has changed considerably. Traditionally women
have been child careers and homemakers with little activity or influence in public
matters. Women are still often cast into these roles, although they now have far
greater freedom to adopt other roles, such as working for an income.

In the current workplace women face many challenges and problems. In terms of legal
protection women have been offered more opportunities for success that previously,
but the attitudes of some parts of society still act to constrain women in the
workplace. There have been several responses regarding the problems that women have
faced in the workplace. The legal response has been to create laws that seek to
protect women by making certain action illegal and requiring that employers behave
in certain ways. Non-legal responses include trade unions education, training
schemes and the training guarantee. However the extent the effectiveness of the
non-legal and legal mechanisms have to generate just outcomes, has not yet fully
been utilised.

The workplace is still dominated by gender bias. The human rights and equal
opportunity commission (HREOC) defines it as the belief that there exist unwritten
language in the law which favours males over females. It suggests that the law has
been created by males and to a large degree excludes women and their experiences.
In doing so the legal system does not adequately deal with the needs of women
because it does not understand them. Sexual discrimination is another concern for
women. It is defined by the HREOC as being treated unfairly because of your sex or
marital status or because you are pregnant or potentially pregnant. There are two
forms of sex discrimination, Direct and Indirect. Direct discrimination occurs when
someone acts directly to treat someone else differently because of their membership
in a particular group in society and Indirect discrimination occurs when an action
is taken which results in one group in society being treated less favourable than
another. Direct and indirect discrimination against women occurs in the workplace
and in many ares of everyday life. Women are more likely to be victims of indirect
discrimination than men are.

An article recently published in the law society journal depicts the unsavoury, and
quite appalling circumstances that have resulted in everyday working women
formalising complaints under the Sex Discrimination Act (Cth) 1984, Anti-
Discrimination Act (NSW) 1977 and The Human Rights and equal Opportunities

Commission Act (Cth) 1986. Unfortunately this case study provides a realistic
insight into the working lives of what some women go through, in this case study a
young women, Ms Osborne was employed by a small recreational club to undertake a
variety of tasks including her work, poker machine pay outs and table service. She
stated that during that period of employment the club discriminated against her on
grounds of her sex and pregnancy, and that she had also been sexually harassed.

Ms Osborne said that she had made an internal complaint of sexual harassment, which
resulted in her being victimised. She said the victimisation consisted of a denial
of further work after the birth of her child, even though she had been employed
with the club as a casual for over 18 months prior to the birth.

Ms Osbornes sexual harassment complaint was against two club officials. She stated
they made comments such as come back to my place for some sex and your tits are
getting bigger. Hows about a root. Ms Osborne said that one of the officials had
touched her stomach without permission when she was well into her pregnancy. Her
internal complaint to her supervisor resulted in verbal apologies from the two
officials and at the time Ms Osborne was satisfied with the resolution. She
subsequently became disgruntled however, believing that her shifts were reduced as
a mean of retaliation for having made the internal sexual harassment complaint.

Ms Osborne stated her supervisor asked when she intended to stop working and
commented it doesnt look very nice with you doing table service while you are
pregnant. Due to the reduction in her shifts Ms Osborne left work four weeks
earlier than planned.

Claiming that she had always intended to return to work after the birth of her
baby, Ms Osborne attempted to regain work with the club on a number of occasions.
She was told there was no work available.

The employer argued that Ms Osborne had requested a reduction in her hours because
she was having difficulty coping with the workload as well as attending family
responsibilities during her advancing pregnancy, and that she finally resigned from
her position and left of her own free will. The employer further argued that all
issues to do with the sexual harassment complaint were satisfactorily resolved at
the time and that no victimisation occurred as a result of her complaint. Finally
Ms Osbornes supervisor denied making comments about the pregnancy.

Ms Osborne lodged a complaint under the federal Sex Discrimination Act. The matter
was settled with an amount of $7,500 paid to Ms Osborne and the provision of a
written work reference.

This case study shows the different ways in which women are treated differently in
the work force. The average weekly earnings for a full-time male employee $847.60,
compared to $712.20 for women. Not only that but, Sexual Harassment and sexual
Discrimination remains the most common grounds of complaint under the Sex
Discrimination Act 1984, with 84% of complainants being female. These facts prove
that women have not yet been seen as equal to that of men in the workforce.

A workplace free of sex discrimination and sexual Harassment is a human right.

Anyone directly affected by discrimination had the right to complain, according to
the Human Rights and Equal Opportunities Commission (HREOC). There are three stages
that a complaint must go through; the process is private, confidential and free.
Firstly enquires are made and if the commission decides that the complaint comes
within the terms of the SDA (or under the other responsibilities of the commission)
an investigation will follow, this is to prove that discrimination has occurred.
The investigation will attempt to determine what happened and if there is enough
evidence to support the complaint, an attempt at a conciliation will occur. If the
complaint cannot be conciliated then the complainant may then apply to the federal
court of Australia to have the original allegation heard and determined. The
decision of the federal Court is legally binding.
Sexual Harassment is a major problem for women in the workforce. It is defined as
an unwelcome sexual advance or request for sexual favours or unwelcome conduct of
a sexual nature. Many women who have suffered from sexual harassment in the
workplace have received compensation under the sex discrimination Act. In the Hill
V Water Resources Commission (1985) case, the principle of a vicarious liability of
employers in talking responsibility for the actions of the some employees, was
established.

In a case study involving sexual harassment a sixteen year old girl Ms Krohn
reported that she was indecently assaulted and sexually harassed by her Co-worker
Mr Stafford. In particular, Ms Krohn said that on one occasion Mr Stafford led her
out of sight of the other Co-workers, grabbed her, kissed her on the mouth and
placed his hand inside her clothing, touching her genital area and breasts.

Ms Krohn left the employer at lunchtime that day, and was taken by a friends
mother to the local police station where she reported the incident. She initiated
criminal proceedings in the local court for which Mr Stafford was sentenced to
weekend detention for aggravated indecent assault. She then lodged a complaint
under the federal Sex Discrimination Act. She stated that her employer had
neglected to provide any sexual harassment information or training and consequently
failed to provide a safe working environment.

This matter was settled at a conference with Ms Krohn receiving a compensation

payment of $16000. Mr Stafford payed $5500 and the employer paid $10500

The women of Australia have also fought for the rights of minority groups. These
groups in Australia include immigrant and indigenous Australian women and lesbians.
Immigrant women are often trapped in isolation from society through their language
difficulties. Despite all legislation against discrimination: the Racial
Discrimination Act 1975(Cth) and The Anti-Discrimination Act 1977 (Cth), immigrant
women are still victims of indirect discrimination in the workforce. Many of these
women work in under award conditions and with their lack of English skills, In many
cases, they are especially vulnerable to neglect and exploitation. In recent years
these women have been provided with centres which offer them information, mediation
services and training, in there own languages. Indigenous women have been given the
same social security rights as other women. The 1907 referendum changed the
constitution so that the commonwealth Government could make laws concerning
Aboriginal people and they were made full citizens. Lesbians too are victims of
specific discrimination. These women have to fight for their rights in the division
of a partners estate, because The Family Provision Act 1982 (NSW) does not make
specific mention of homosexual couples. They also cannot access fertility clinics,
sperm banks or adoption centres. Because of their lesbianism they often experience
both verbal and physical abuse.

Women still encounter disadvantages today, although there is still a limit to the
amount of assistance women receive today even though things have changed
considerably over time.

When the Whitlam government was elected in Australia, it introduced some mechanisms
for women to achieve justice. The mechanisms that were needed to resolve particular
problems confronting women included: Political and economic inequality in accessing
education, training and development, gaining promotion, equal pay and sexual
Harassment.

In terms of equality and access to womens education and training, the government
has been pro-active. Since the right to enter high education was given to women
early in the 20th century, womens access to and participation on education has
almost equalled that of men.
The increasing number of women going through year 12 has also increased their
chance to enter tertiary education. In the area of tertiary qualifications, women
have faced an up hill battle. It was not until 1967 that women were allowed to
study at university in Australia, but their range of subjects was limited. Now
women are given the right to enter the subject of their choice.

However women are given fewer opportunities that men to under go on-the-job-
training due to discrimination and childcare commitments. Due to the lack of
training, women are less likely to be in a position to again promotion especially
in senior managing positions. This inability of women to gain such positions is not
just because of their lack of training but the glass ceiling effect. This refers to
and invisible barrier created by male prejudice, which prevents women from being
promoted above a certain level.

Male prejudice, male dominated work practices and the unwillingness of

organisations to take into account womens career paths are all factors, which
contribute to the glass ceiling. A mechanism aimed at changing this is the equal
employment opportunity legislation says that large companies are required to
provide more opportunities for women.

The glass ceiling effect is only one reason why the pay for women is not equal to
that of the pay of men. Today, women earn an, average, 79% of the average male
income. Equal pay for equal work has been a legal reality, but the pay gap between
men and women is still obviously wide.

The main reason for this is that the area of work dominated by women attract lower
wages, women are more frequently cast in the role of home makers, cuts in child
care funding which has made it difficult for women to participate in the workforce,
discrimination in being promoted, and of course the glass ceiling effect. The
mechanisms used to improve management positions for women have only improved
0.15%p.a.

At this rate, it will take approximately 177 years for women to gain equality.

Federal legislation to provide opportunities for groups that have historically been
the subject of discrimination is know as Affirmative Action. Its principle is to
create an employment atmosphere where equality in opportunity exits in the
workplace. This principle was established by the Affirmative Action (Equal
Employment Opportunity for Women) Act 1986 (Cth), which was later amended in 1999
to become the Equal Opportunity for women in the Workplace Act (Cth). This act
requires higher education authorities and companies, employing over one hundred
people to implement affirmative action programs. Men are not discriminated against
by this legislation because the Act only promotes opportunities for advancement for
women. Though affirmative action has seemed to improve the position of women in the
workforce, it has still been limited in its effectiveness. Reasons for this
limitation include: legislation not applying to workplaces less than one hundred
employees; lack of adequate penalties for non-compliance with the legislation; lack
of redressing some fundamental problems faced by women workers; and attitudes of
men towards women.

State legislation, which protects women from discrimination in the workplace, is

Anti-Discrimination legislation. Discrimination in this way involves sexual
harassment, direct discrimination, indirect discrimination and discrimination
because of pregnancy. No one can be discriminated against because he/she is single,
married, divorced, or living in a de-facto relationship. Like the Affirmative
Action Act, it requires the implementation of affirmative action programs, but on a
state level.

Education and training schemes are being set up by the NSW government to let women
know of its initiatives to build a safer community. Community and government to let
women know of its initiatives to build a safer community. Community and government
agency expert will ensure that the government is informed about all types of
violence against women and how to stop such violence. Public education campaigns
about reducing violence will be coordinated also.

The NSW police service has carried out an extensive campaign to encourage victims
of domestic violence to call the police.

In conclusion all factors affecting the legal systems operations, to generating

just outcomes have changed considerably over time. However women are still
disadvantaged in many ways and to resolve this, legal and non-legal mechanisms have
been introduced, including trade unions, lobby groups, welfare groups and
government agencies. Many mechanisms available for women to generate just outcomes
in the Australian legal system, have made a big difference to women and have made
it far more easier to achieve justice in society. However, as has been seen, women
still suffer greater disadvantages in many ares of daily life.

Category : Social Sciences

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