Does Your Workplace Have an Unconscious Gender Bias?
What is Unconscious Gender Bias?
The term unconscious gender bias refers to a bias that the individual may not even be aware of based on gender, which can affect their decision-making and behaviour in the workplace and in the recruitment process. These automatic mental associations based on gender, result in quick assessments of an individual according to gender and gender stereotypes. However, employers and organizations can take steps to counteract gender bias in the workplace
Traditionally, unconscious gender bias has been and remains a significant barrier to women’s career advancement. Some of the most common forms of unconscious gender bias are, gender-based salary inequality, reduced female representation in leadership development programs, masculine-orientated criteria in performance evaluation placing female employees at a disadvantage and reduced female representation in leadership roles.
Austin Health v Tsikos
In April 2023 the case of Austin Health v Tsikos was heard before the Victorian Supreme Court of Appeal. The matter was first before the Victorian Civil and Administrative Tribunal [VCAT] in December of 2020, then the Supreme Court in April 2022. Ms Tsikos, a Department Manager with Austin Health brought legal proceedings against her employer as they refused to engage with her each time she attempted to renegotiate her wage, totalling six attempts over seven years, while they did negotiate wages with male employees. In addition to her employer refusing to engage with her, several of her subordinates were paid at a higher rate than their respective position and one subordinate was being more paid more than she was.
VCAT decided that Ms Tsikos had not been discriminated against or suffered unfavourable treatment on the basis of her age or sex. On appeal to the Victorian Supreme Court found that VCAT’s decision was incorrect and found that Austin Health had sexually discriminated against her by refusing to negotiate her wages.
Austin Health then further appealed the decision, claiming the Judge has made a plethora of mistakes in their judgement. However, the Court of Appeal agreed with the Supreme Court’s decision that Austin Health had engaged in systemic sexual discrimination.
When the Court of Appeal made their judgment they did not raise unconscious gender bias as they found that Austin Health had engaged in systemic discrimination against Ms Tsikos. However it is of note that when the matter was before VCAT, VCAT noted in their decision that it was entirely possible for the employer to have engaged in unconscious gender bias, based on the evidence of Ms Tsikos’ expert witness, even as they dismissed Ms Tsikos complaint in the first instance
What does this decision mean for employers?
The key takeaway from Austin Health v Tsikos, is that unintentional discrimination or unconscious bias can still result in legal action against an employer under anti-discrimination legislation. The case emphasises the requirement for employers to understand what a potential ground for an anti-discrimination lawsuit could be and how to take steps to prevent discrimination from occurring, or failing that ensuring that it correctly addresses discrimination.
This is a vitally important consideration especially in light of the recent Respect @ Work Report and the Anti-Discrimination and Human Rights Legislation Amendment (Respect At Work) Act 2022 that came into effect on 13 December 2022 which drastically amended the Sex Discrimination Act 1984 and the Australian Human Rights Commission Act 1986. A key change under the Act is the creation of a positive duty on all employers to take ‘reasonable and proportionate measures’ to eliminate unlawful sex discrimination, including sexual harassment, as far as possible. This may involve implementing and monitoring compliance with policies and procedures, reviewing systems to identify and remove entrenched forms of discrimination in structures collecting data, providing appropriate support to workers and employees, and delivering training and education on a regular basis.
This article is general in nature and is not legal advice. If you need help with an Employment Law matter or require assistance with updating your workplace procedures and policies, Voice Lawyers hear you. We help people navigate the complexities of the Fair Work Act and workplace laws with confident, practical advice.
If you would like to attend one of our Employer breakfasts or have one of our lawyers present on the Respect @ Work requirements or provide other workplace training email us on voice@voicelawyers.com, give us a call at 02 9261 1954 or use the link on our website to book a consultation to speak with one of our lawyers.
By Kayte Lewis and Enda Byrne