Beyond Comparison: Sex and Discrimination

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  5. Beyond Comparison: Sex and Discrimination - Timothy Macklem - Google книги

Yet we know that in fact We live in a moral world in which reasons come in different kinds as well as different weights, so that the claims of one reason upon us are often dif How can law help build community? Don't people typically have good reason to pursue their own courses at the cost of life in common? This book goes beyond the familiar debates in jurisprudence, exploring the ways in which the rational appeal of law requires the support of other means of persuasion, most obviously enforcement, but also beguilement. This book goes be Independence of Mind Timothy Macklem The fundamental freedoms of speech, conscience, privacy, and religion are now an essential part of the fabric of contemporary society, set down in our most basic laws and regularly invoked in our political and cultural debates.

Coleman Timothy Macklem argues that the heart of discrimination lies not in unfavorable comparisons with the treatment and opportunities that men enjoy, but rather, in a denial of resources and opportunities that women need to lead successful and meaningful lives. Other editions. Enlarge cover. Error rating book. Refresh and try again. Open Preview See a Problem? Details if other :.

Thanks for telling us about the problem. Return to Book Page. Preview — Beyond Comparison by Timothy Macklem. Beyond Comparison by Timothy Macklem. Timothy Macklem argues that the heart of discrimination lies not in unfavorable comparisons with the treatment and opportunities that men enjoy, but rather, in a denial of resources and opportunities that women need to lead successful and meaningful lives.

This work promises to be a milestone in the debate about gender equality and will interest students and professionals Timothy Macklem argues that the heart of discrimination lies not in unfavorable comparisons with the treatment and opportunities that men enjoy, but rather, in a denial of resources and opportunities that women need to lead successful and meaningful lives.

This work promises to be a milestone in the debate about gender equality and will interest students and professionals concerned with legal theory and gender studies. Get A Copy. Hardcover , pages. More Details Driver FM considered that the appropriate hypothetical comparator for the purposes of s 7 1 of the SDA was an employee of the respondent subject to the same terms of employment: that is, one who had expressed a wish to take a period of unpaid leave; whose work performance was not assessed as unsatisfactory prior to the leave request; and who password protected two documents without instruction and reported in sick by means of an SMS message.

His Honour held that the respondent acted unlawfully in dismissing the applicant in breach of ss 7 1 and 14 2 c of the SDA. His Honour stated:. The fact was that Ms Fenton had presented for work, was not sick and wanted to work. Ms Hunt had decided not to take the risk of permitting Ms Fenton to work because she did not want a repetition of the events of 18 December [on which day the applicant had been ill and had to leave work]. However, the decision should have been left for Ms Fenton. Ms Hunt denied Ms Fenton access to paid employment for a week which was a benefit associated with her employment.

Alternatively, the denial of paid employment was a detriment for the purposes of s. The definition of discrimination on the ground of family responsibilities appears in s 7A of the SDA. Unlike the other grounds in the SDA, the definition is restricted to direct discrimination. In addition, discrimination on the ground of family responsibilities is made unlawful only where an employee is dismissed s 14 3A although constructive dismissal will suffice. The respondent sought to impose upon the applicant the condition that she attend work from 9am until 5pm with a half hour for lunch between 12pm and 1pm.

Raphael FM found that the applicant was treated less favourably than a person without family responsibilities who would have expected flexibility in starting and finishing times and in the timing of meal breaks. There is no doubt in my mind that the applicant was dismissed by the respondent when she presented herself for work on 1 August The employment relationship between the parties had continued to that point and the applicant was clearly sent away from the workplace on the understanding that the employment relationship was then severed.

The reason for the dismissal is also clear. The reason was that Mr Meoushy was unwilling to countenance at that time the possibility of the applicant working part time and had filled her full time position, rendering that position also unavailable.

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Mr Meoushy had taken that action because he had formed a view I think correctly that the applicant was unwilling to work full time because of her family responsibilities. I am left in no doubt that the applicant was dismissed from her employment on 1 August because of her family responsibilities. A number of cases involving issues relating to family responsibilities and requests for flexible working arrangements have included claims of indirect sex discrimination s 5 2.

These cases are considered at 4. The definitions of indirect discrimination on the grounds of marital status s 6 2 and pregnancy or potential pregnancy s 7 2 are set out in similar terms.

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In a proceeding under this Act, the burden of proving that an act does not constitute discrimination because of section 7B lies on the person who did the act. The current provisions relating to indirect discrimination were inserted by the Sex Discrimination Amendment Act Cth. Prior to the commencement of that amending Act, the indirect discrimination provisions of the SDA were in similar terms to those currently in the DDA. The bill sets out a simpler definition of indirect discrimination.

It provides that a person discriminates against another person if the discriminator imposes or proposes to impose a condition, requirement or practice that has or is likely to have the effect of disadvantaging the person discriminated against because of, for example, his or her sex. The focus is on broad patterns of behaviour which adversely affect people who are members of a particular group.

There are three constituent elements to the current indirect discrimination provisions of the SDA. These are:. In a number of cases, issues surrounding family responsibilities and requests for part-time work have been considered within the context of the definition of indirect sex discrimination. This is significant because s 14 3A of the SDA only makes direct discrimination on the basis of family responsibilities unlawful in cases of dismissal from employment. Dawson J stated:. Nevertheless, it is necessary in each particular instance to formulate the actual requirement or condition with some precision.

This passage was cited with approval by the High Court in Waters v Public Transport Corporation [] in the context of the indirect discrimination provisions of the Equal Opportunity Act Vic. Her request was denied and her employment later terminated. In Hickie , the complainant had taken maternity leave shortly after having been made a contract partner at the respondent law firm.

She complained of a range of less favourable treatment during the period of her maternity leave and following her return to work on a part-time basis. Relevantly, an area of her practice was removed from her on the basis that it could not be managed working part-time. The applicant had worked on a full-time basis prior to her maternity leave. Driver FM held as follows:. The test under s. In this case the relevant condition or requirement was that the applicant work full-time. Such a condition or requirement is likely to have the effect of disadvantaging women because, as I have noted, women have a greater need for part-time employment than men.

That is because only women get pregnant and because women bear the dominant responsibility for child rearing, particularly in the period closely following the birth of a child. In this case discrimination under s. In this case, the applicant complained that the refusal by her employer to make available part-time work upon her return from maternity leave amounted to indirect sex discrimination. Raphael FM discussed, in particular, the decisions in Hickie and Mayer , and distinguished them from the case before him. His Honour noted that in both of those cases the applicants had been refused benefits that had either been made available to them as in Hickie or that were generally available as in Mayer.

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Beyond Comparison

In the present case, there were no part-time employees in managerial positions employed with the respondent. Section 5 2 makes it unlawful for a discriminator to impose or propose to impose a condition requirement or practice but that condition requirement or practice must surely relate to the existing situation between the parties when it is imposed or sought to be imposed.

The existing situation between the parties in this case is one of full time employment. No additional requirement was being placed upon Ms Kelly. She was being asked to carry out her contract in accordance with its terms. In those circumstances, his Honour held that the behaviour of the respondent constituted a refusal to provide the applicant with a benefit. Driver FM disagreed with Raphael FM in Kelly , on this issue, albeit in obiter comments, for reasons which included the following. First, if Raphael FM was correct in distinguishing the earlier authorities, an employer who consistently provides part-time work but then later refuses to do so can be liable under the SDA as in Mayer but an employer who has a policy or practice of never permitting reduced working hours cannot as in Kelly.

This would be an odd result. They are separate elements of s 5 2 and must remain so if the provision is to operate effectively. Different conditions attach to each under the Act. As well, under the award [] permanent teachers are paid more than temporary teachers. The award contains 13 pay scales for permanent teachers and 5 for temporary teachers; the highest pay scale for temporary teachers is equivalent to level 8 of the permanent teachers scale. Gleeson CJ agreed with Beazley JA in the NSW Court of Appeal [] that the relevant conduct of the Department was its practice of not paying above award wages to temporary teachers engaged in the same work as their permanent colleagues.

They stated that:. Often the notion of employment takes its content from the identification of the position to which a person has been appointed. Kirby J dissented. As discussed in 4. The courts have accepted, sometimes as a matter of judicial notice without any specific evidence, that this disadvantage stems from the fact that women are more likely to require part-time work to meet their family responsibilities. Although no statistical data was produced at the hearing, the records produced by Hunt and Hunt suggest that it is predominantly women who seek the opportunity for part time work and that a substantial number of women in the firm have been working on a part time basis.

I also infer from general knowledge that women are far more likely than men to require at least some periods of part time work during their careers, and in particular a period of part time work after maternity leave, in order to meet family responsibilities. In these circumstances I find that the condition or requirement that Ms Hickie work full-time to maintain her position was a condition or requirement likely to disadvantage women. The point is that the present state of Australian society shows that women are the dominant caregivers to young children.

While that position remains and it may well change over time s 5 2 of the SDA operates to protect women against indirect sex discrimination in the performance of that care giving role. Section 7B 2 identifies matters that are to be taken into account in determining reasonableness. It is not an exhaustive definition. The onus of establishing that the requirement or condition is reasonable rests on the respondent s 7C. The criterion is an objective one, which requires the court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the requirement or condition on the other.

All the circumstances of the case must be taken into account. As discussed above see 4. Hunt and Hunt have accepted that women should be able to work part time after their maternity leave. The firm should have considered seriously other alternatives. Ms Hickie would return in a few weeks and she was willing to work on urgent matters. Part of her practice could have been preserved for her with other arrangements.

Driver FM found that the evidence made it clear that there was in fact part-time work available for Ms Mayer. At a minimum, therefore, the respondent should have offered Ms Mayer employment for two days per week for the balance of her contract until 3 January The work that Ms Mayer could have performed part-time would have been discrete project work, rather than the performance of her previous functions. Ms Mayer gave evidence of important projects that she could have assisted on. In my view, with a little imagination the respondent could, if it had wished to, found useful work for Ms Mayer to do for three days a week until 3 January The effective performance of that role would have been problematic if Ms Mayer had worked partly from home, or had shared her duties with another employee.

As in Escobar , his Honour did not make express reference to s 7B 2 when expressing his conclusions on reasonableness. Gleeson CJ Callinan and Heydon JJ agreeing [] was the only member of the majority to consider the issue of reasonableness. The opening words of both ss 5 1 and 5 2 are the same. The distinction between the two sections is simply that s 5 1 deals with direct discrimination and s 5 2 with indirect discrimination. The provisions are therefore mutually exclusive. The test under s 5 2 is whether a condition, requirement or practice has, or is likely to have, the effect of disadvantaging a person of the same sex as the aggrieved person; in this case, a woman.

Discrimination under s 5 2 is either established or not by reference to its own terms, not by reference to s 5 1. In this case discrimination under s 5 2 is established because the respondent insisted upon the applicant working full-time against her wishes. The issue of family responsibilities is only relevant insofar as it establishes that women tend to be disadvantaged by such a requirement. The same reasoning would presumably be applied to the direct and indirect discrimination provisions relating to the grounds of marital status and pregnancy.

This does not, however, prevent applicants from pleading direct and indirect discrimination in the alternative. Section 7D of the SDA states: []. In this case, the rules of a union provided that certain elected positions on the branch executive and at the state conference were available only to women.

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The male applicant alleged that the rules discriminated against men and were unlawful under the SDA. Consequently, women were guaranteed representation in particular braches of the union in excess of their membership to the disadvantage of men. The union successfully defended the proceedings on the basis that the rules complained of were special measures within the meaning of s 7D of the SDA. The special measures provision is limited, in its terms, by a test as to purpose. Section 7D 1 provides that a person may take special measures for the purpose of achieving substantive equality between, amongst others, men and women.

The achievement of substantive equality need not be the only, or even the primary purpose of the measures in question s 7D 3. It was accepted by Crennan J in Jacomb that the test as to purpose is, at least in part, a subjective test. Section 7D also requires the court to consider the special measure objectively. Crennan J appeared to accept the submission of the Sex Discrimination Commissioner appearing as amicus curiae [] that s 7D requires the court to assess whether it was reasonable for the person taking the measure to conclude that the measure would further the purpose of achieving substantive equality.

The court should not substitute its own decision. Rather it should consider whether, in the particular circumstances, a measure imposed was one which was proportionate to the goal. Crennan J stated that she was satisfied, on the evidence, that the union rules were a reasonable special measure when tested objectively. Section 7D 4 provides that the taking, or further taking, of special measures for the purpose of achieving substantive equality is not permitted once that purpose has been achieved.

This gives rise to the question: when can it be said that measures are no longer authorised because their purpose has been achieved? Crennan J stated:. The rules have only been utilised once and there was evidence that elections to the relevant positions were for four-year terms. Accordingly, it is too soon to find that the special measure is no longer needed or that rules 5 and 9 are deprived of their character as a special measure because they have been utilized once. The bulk of the claims that have been brought under the SDA have related to employment.

However, the provisions in Part II, Divisions 1 and 2 of the SDA also proscribe discrimination in other areas of public life, including:. An overview of the limited jurisprudence that has considered those provisions is set out below. There were no provisions in the Boxing Act for registration of females.

The applicant applied to the respondent to be registered as a kick boxer in New South Wales. That application was refused by the respondent, on the basis of s 8 1 of the Boxing Act. It was accepted by all parties that the respondent should be treated as the Crown in right of the State of New South Wales. In the proceedings before the Federal Court, the applicant sought, inter alia, a declaration that s 8 1 of the Boxing Act was inoperative by reason of inconsistency with s 22 of the SDA and the operation of s of the Constitution. This provides:. Section 18 did not apply in this matter, as unlike s 22 it does not bind the Crown in right of a State.

However, Wilcox J held that, as Parliament had included a special provision concerning sex discrimination by authorities empowered to confer an authorisation or qualification needed for engaging in an occupation, s 22 must be read down to the extent necessary to exclude cases covered by that special provision. Heerey J stated, in obiter:. Altering the Birth Register was an activity. The applicant requested the Registrar to perform that activity. The carrying out of that activity would have conferred a benefit on the applicant. This was the refusal of a service. An activity carried out by a government official can none the less be one which confers a benefit on an individual.

Beyond Comparison

There were only two other instances of rejection in the history of the club. This was a characteristic generally imputed to the relationship of marriage. The Commissioner was also satisfied that the Club would not have treated a person of different marital status in the same way in similar circumstances. Although not specifically identified, the Commissioner appears to have considered that the conduct breached s 25 1 a refusal of membership. As fellow members they were unable to participate in management of the Club. Management was reserved for women.

Beyond Comparison: Sex and Discrimination - Timothy Macklem - Google книги

Since in this case it was males and not females who alleged unlawful discrimination, the power of HREOC to grant relief depended upon a finding that the Club was a trading corporation for the purposes of s 9 13 of the SDA. That provision appears in Part II Division 3 of the SDA, which goes on to proscribe sexual harassment in various areas of public life, including:. A broad interpretative approach has been taken in relation to the scope of that term.

For example, both in the federal jurisdiction and in other Australian jurisdictions, exposure to sexually explicit material and sexually suggestive jokes has been held to constitute conduct of a sexual nature. Similarly, in the case of Aleksovski v Australia Asia Aerospace Pty Ltd , [] Raphael FM found that the conduct of a co-worker of the applicant constituted unwelcome conduct of a sexual nature.

In Cooke v Plauen Holdings Pty Ltd , [] the applicant complained of acts including personal and inappropriate comments and questions by a supervisor, Mr Ong. She also complained that Mr Ong had sat close to her while supervising her, had asked her to model for him and invited her to come to his home for coffee. In relation to the comments, Driver FM held:. Mr Ong was probably socially clumsy, even socially inept. He may not have intended his comments and questions to be sexual in nature but I do not think that that matters.

The comments and questions can objectively be regarded as sexual in nature, they were deliberate and the applicant was the target. As to the invitations to model and to come over for coffee, his Honour also found that these could properly be regarded as sexual in nature. Certain conduct may on its own not amount to conduct of a sexual nature.

However it may do so if it forms part of a broader pattern of inappropriate sexual conduct. While determining whether the conduct is of a sexual nature is an objective test, determining whether it is unwelcome is a subjective test. In Aldridge v Booth , [] Spender J stated:. In Elliott v Nanda , [] the applicant alleged that she was sexually harassed during her employment at a medical centre by the Director of the centre, who was also a medical doctor. Relevantly, his Honour noted:. In that context it is difficult to avoid the conclusion that [the conduct of the respondent] was unwelcome as were the sexual references or allusions specifically directed to the applicant.


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In relation to other conduct involving discussions about sexual matters, however, his Honour held:. It should be noted that this statement of the test appears to introduce an objective element, contrary to the weight of authority. Rather it was held that the sexual relationship between the parties was voluntarily entered into and continued for a considerable number of years. In these circumstances, Raphael FM stated:. I am not satisfied that the remark made was unwelcome to this applicant even if I would otherwise have found that a reasonable person would be offended, humiliated or intimidated by it.

Relevantly, Raphael FM stated:. I do not subscribe to the theory put forward by the respondents that because Ms San did not make many direct complaints to Mr Lamb and did on occasion answer him back that this indicated that she accepted the remarks as ordinary employee banter.