When it’s OK to discriminate in the workplace

by 14 Dec 2011

Recent rulings by state authorities highlight the rare occasions when discrimination rules simply do not apply.

In one such case, a company that sends handywomen into the homes of vulnerable women has won the right to exclude men when recruiting workers.

The Queensland Civil and Administrative Tribunal granted Pink Army Handywomen a two-year exemption from provisions of the State's Anti-Discrimination Act that prohibit sex discrimination in the areas of pre-work, work and advertising.

The Pink Army's proprietors told Tribunal member Peta Stilgoe they offered "all female" handyperson services to people – such as victims of male-on-female domestic violence – who don't want male workers in their homes.

They said they sought the exemption so they could expand their business by advertising for female employees and contractors.

Member Stilgoe found that the company targeted female and perhaps some male customers "who may not be comfortable with other males in their homes, even for the limited purpose of effecting repairs".

She said she wasn't convinced by the proprietors' argument that an exemption was necessary to provide a service for vulnerable women, as they could "employ whoever is best for the job and simply not send a male to a job if the client so requests".

Member Stilgoe continued that an exemption application shouldn't be granted for "mere convenience or reputation" and said the application conveyed to her a sense – which she hoped was misconceived – that the proprietors "would simply prefer not to employ men".

However, she granted the exemption on the basis that it would promote employment of females in the handyperson/construction industry, after accepting the proprietors' evidence that women make up only 1.6% of tradespeople in the state's construction industry.

In this case it is entirely appropriate that vulnerable people are allowed to feel safe in their own homes.

We are constantly being warned about sham tradesmen targeting the elderly – especially in the aftermath of natural disasters.  

I don’t consider myself to be a “vulnerable” person, but a service of this kind would be of obvious benefit if I was at home alone with a tradesperson.

Women – and often men – want to feel safe in their home.

When handing down the recent ruling, Member Stilgoe said if it wasn't for the tribunal and its predecessors granting sex discrimination exemptions for employment of a podiatrist, a dance instructor and female-only gym facilities, she would not have been inclined to follow suit.

The "limited" two-year term of the exemption would give the proprietors the chance to gather evidence to justify a longer-term exemption, she said.

And in another case earlier this year a Victorian-based job website has been granted an exemption from the State's Equal Opportunity Act to allow it to run an online job board specifically for women.

The Victorian Civil and Administrative Tribunal granted a three-year exemption from the anti-discrimination provisions of the Act, even though it accepted there was a possibility of discrimination occurring because the site was primarily aimed at helping women find jobs.

VCAT Deputy President Cate McKenzie accepted evidence from Lisa Pititto, the general manager of the new site, that the site's operation would promote some of the objectives of the Act by helping women return to the workforce.

Pititto told the Tribunal that the new site, Just Be will provide a job-search engine, career information, articles, advice and an interactive forum specifically for women in the workforce or wishing to re-enter the workforce.

She said the new site would have the support of Business and Professional Women Australia, the Victorian Women’s Trust and the Council of Small Business Organisations of Australia Ltd.

Deputy President McKenzie said in her decision that the proposed site would "fulfil a need" by helping women who have been off work through pregnancy or maternity leave to find jobs with flexible employment arrangements.

"This is a service which is not provided online anywhere else and it is unique. This is particularly important in today’s changing workplace climate and it is also important for women who simply may not know where to access employers offering these kinds of flexible arrangements", said Deputy President McKenzie.

"It is in my view unique and an extremely sensible and appropriate website to be launching. It will help women in a situation where they are often under disadvantage."

She said the site also "may well encourage more employers to consider offering flexible arrangements like this for women."

Deputy President McKenzie said there was "no indication of any opposition" to the granting of the exemption and in fact "there is great support among Australia-wide organisations for it".

She also accepted that men would be free to access the site should they choose to.

The new site aimed to encourage women to rejoin the workforce by promoting jobs with flexible arrangements.

But there are many other cases where discrimination exemption applications have failed.

Recently, a college that was offering Australia's first male-only training course was denied a discrimination exemption by the Queensland Civil and Administrative Tribunal.

The college sought to address “female domination” in the childcare industry.

Kings' International College claimed the gender-specific course was warranted because male students were not encouraged to train in the discipline and were ridiculed if they did so.

It argued that starting the course would help to address the imbalance between men and women in enrolment into their Certificate III in Children's Services course. It presented ABS data as evidence that in 200 only 4% of Australian childcare workers were male.

But QCAT Senior Member Clare Endicott said the college had failed to provide evidence that male students had lesser opportunities to access the course.

She said the college's assertions about a lack of encouragement of male involvement in courses and of males being ridiculed in mixed-sex courses wasn't supported by the evidence it provided.

"There is simply no established link in the evidence between the ongoing low numbers of male childcare students and the running of mixed sex courses", she said.

Senior Member Endicott said it wasn't the tribunal's job to address the imbalance between male and female enrolments, only to provide equal opportunity to study.

"If the College wants to take a lead role in reversing the trend of many years of low numbers of male childcare students, there are likely to be non-discriminatory ways of achieving that purpose," she said.

About the author

Jo Kamira is co-principal and director of Wise Workplace Investigations and is an expert in the field of workplace misconduct including harassment and bullying, conflict of interest, misuse of information and fraud. She is a former head of Equity and Diversity in the Australian Federal Police with 20 years’ experience in criminal justice as a practitioner, educator and consultant 

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