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JONATHON HUNYOR[*]
When confronted with allegations that the proposed cover of the album Smell the Glove is sexist, Nigel Tufnel, member of the band Spinal Tap in the cult classic film This is Spinal Tap, asks ‘What’s wrong with being sexy?’ It was this response that sprang to mind as I read the reasoning of the Federal Magistrates Court in Zhang v Kanellos[1] (‘Zhang’).
The applicant in Zhang complained that she had been treated as a ‘sex object’ when she was required to wear a short skirt to work as a bar attendant. Such treatment was claimed to amount to direct sex discrimination, contrary to s 5(1) of the Sex Discrimination Act 1984 (Cth) (SDA): in essence, the applicant claimed that she was treated less favourably than a man in the same circumstances.[2] The SDA also makes sexual harassment of employees unlawful (s 28B).
The applicant’s case was dismissed by Driver FM who found, among other things, that a distinction could be drawn between ‘sex discrimination’ and ‘sexual discrimination’.
This article critically analyses the Court’s reasoning and suggests that the decision fails to consider adequately some difficult but important issues relating to women’s sexuality in the context of employment. I argue that the Court fails to clearly address the elements of the test for discrimination under the SDA and makes questionable use of evidence relating to the applicant’s behaviour in her personal life. I conclude that the ability of women to assert their rights to equality in the workplace under the SDA may be limited in the event that the Court’s reasoning is uncritically applied in other cases.
The applicant worked in the Mountbatten Hotel for 18 months as a casual food and beverage attendant. She was then offered work as a ‘gaming room attendant’. In this new position she was asked to wear a mini skirt instead of pants or jeans. The applicant was found to have initially agreed to this condition. Employees working in other parts of the hotel were not required to wear a short skirt and could wear jeans instead. The respondent deposed that employees working in the gaming room were expected to wear short skirts, although it appeared that the only other employee working in the gaming room at the same time as the applicant — a woman, Chanelle — was not required to wear a short skirt, but could wear dresses, skirts or trousers.
Counsel for the respondent tendered an article from FHM magazine in which the applicant was photographed wearing a bikini and was apparently interviewed on a range of subjects ‘including subjects of a sexual nature’. It is not clear from the decision what submissions were made by counsel as to the relevance of the article, although as will be seen, it was a matter for comment in the Court’s reasoning.
The applicant wore a short skirt to work on approximately three occasions before ceasing to do so. The applicant claimed that she stopped wearing a short skirt after the respondent pinched her on the bottom on three occasions. The applicant claimed that, on a later date, she was again assaulted by the respondent when he squeezed her breast, allegedly because she had failed to wear a short skirt to work. The applicant ceased her employment shortly after this alleged incident. The allegations of sexual harassment were denied by the respondent and the Court was not satisfied, on consideration of a range of evidence, that the incidents occurred.
The Court’s decision on the issue of sexual harassment is not considered here as it turned essentially on the facts. Rather, it is the manner in which the Court resolved the issue of sex discrimination that is of particular interest. I note at the outset that, of course, a court is limited by the manner in which a case is presented before it. In my view the Court’s reasoning nevertheless fails to address adequately a number of important issues raised by the facts of the case.
The case for the applicant was that the requirement to wear a mini skirt was direct discrimination in employment. Counsel for the applicant submitted that ‘this treated Ms Zhang as a sex object and she was treated less favourably than a comparable [male] employee would have been in the same or similar circumstances’.[3] Driver FM stated that the claim of sex discrimination suffered from ‘insuperable difficulties’, noting that there was no male ‘comparator’ offered against whom the applicant could compare her treatment.[4] The only other employee in the gaming room was not required to wear a short skirt and no men were employed in the gaming room.
His Honour then stated:
Ms Zhang complains about the obligation to wear short skirts upon the basis that this treated her as a ‘sex object’. However, this confuses sex discrimination with sexual discrimination. Ms Zhang must establish that she was treated less favourably than a comparable [male] employee would have been in the same or similar circumstances by reason of her sex. It does not avail her anything to complain that her employer took advantage of her sexuality. Obviously, Ms Zhang was not treated differently from Chanelle because she was a woman. They are both women. There were no other employees in the gaming area at the hotel against whom Ms Zhang’s treatment might be compared. The hotel at the relevant time did have male employees but they were in the general bar area. The duties of staff in the general bar area were different to those of staff in the gaming area and the different clothing requirements reflected those different duties. The hotel required staff in the gaming area who would look attractive and would present a more sophisticate image to that of staff in the general bar area. Even on the basis of a hypothetical comparison, there is no evidence that a male employee, if there had been one in the gaming room, would have been treated any differently.[5]
While not stating any clear finding on the issue, the Court appears to accept the applicant’s claim that the respondent’s requirement that she wear a mini skirt ‘treated her as a “sex object”’ or, alternatively, ‘took advantage of her sexuality’. Although a precise definition of ‘sexuality’ is potentially contentious, the Macquarie Dictionary provides the following definition which is, in my view, satisfactory for the present discussion:
1. sexual character; possession of sex.
2. the recognition or emphasising of sexual matters.
There is, in my view, no plausible explanation for the respondent’s requirement other than that it sought to please its customers, and accordingly benefit its business, by emphasising the ‘sexual character’ of the applicant. In my view, however, the Court fails to provide a satisfactory answer to the question that follows from this, namely whether or not treating an employee as a ‘sex object’ or taking advantage of her sexuality might amount to less favourable treatment by reason of her sex.
It has been recognised in a number of cases that conduct constituting sexual harassment also constitutes a form of sex discrimination.[6] Such decisions acknowledge that subjecting an employee to offensive, humiliating or intimidating behaviour constitutes their less favourable treatment. It has further been held that conduct which falls short of sexual harassment, but makes an employee feel ‘uncomfortable, unwelcome and victimised’ and is referable to their sex can amount to sex discrimination.[7] It is disappointing that such decisions were not apparently the subject of consideration in the present case.
Rather, in the passage above, the Court draws a distinction between ‘sex discrimination’ and ‘sexual discrimination’ and finds that the latter is not proscribed by the SDA. It is unclear what is meant by ‘sexual discrimination’, a term that is not defined or otherwise used in Australian law. If it is used to describe less favourable treatment based on a person’s ‘sexuality’, how is ‘sexuality’ to be separated from ‘sex’? Is the sexuality of men and women the same? If not, how does it differ? I suggest that the distinction drawn by his Honour is unhelpful and appears, with respect, to have distracted the Court from properly considering the questions that the test for discrimination under the SDA requires to be answered.
Driver FM is clearly right to note that under the SDA the applicant ‘must establish that she was treated less favourably than a comparable [male] employee would have been in the same or similar circumstances by reason of her sex’. That is the test set out in the definition of direct discrimination in the SDA. However, it does not follow that ‘[i]t does not avail [the applicant] anything to complain that her employer took advantage of her sexuality’. In my view, it may do so if it could be shown that advantage was not, or would not have been, taken of the ‘sexuality’ of a male employee in similar circumstances. If the applicant was treated as a ‘sex object’ and male employees were not, couldn’t this be less favourable treatment by reason of sex?
There was, as the Court notes, no ‘direct comparator’ in this case: that is, a male employee in the gaming room against whom the treatment of the applicant might be compared. However, the respondent does not appear to have contended that only women could be employed in this position (such that a comparison could not have been made at all), and Driver FM accepts in the passage set out above that it is not necessary under the SDA for there to be an actual comparator: a hypothetical comparator will suffice. Yet, the Court does not, in my view, adequately address the comparison that the applicant’s case raises, namely: would a male employee working in the gaming area have been required to wear clothing that ‘took advantage of [his] sexuality’ or made him a ‘sex object’?
It simply does not follow from the hotel’s requirement that staff in the gaming area ‘look attractive and … present a more sophisticate image to that of staff in the general bar area’ that employees must dress in a fashion that makes them ‘sex objects’. Nowhere in the decision is it suggested, or found by the Court, that a ‘sophisticate image’ can only be presented by a woman if she wears a mini skirt. Indeed, the other woman working in the gaming area was not required to do so.
It is interested to compare the reasoning in this matter with that in Ho v Regulator Australia Pty Ltd,[8] in which Driver FM considered a claim that the applicant had been discriminated against by reason of her sex when she was asked to change the towels in the men’s washroom. His Honour made the requisite comparison in that case as follows:
The request would not have been made if Ms Ho had been a man. Appropriate comparators in the circumstances are the male employees in the workplace. They were not and would not have been asked to undertake this menial task.[9]
I suggest that such a straightforward, commonsense comparison may also have been made in the present case: at the Mountbatten Hotel, men were not and would not have been asked to dress in a manner that took advantage of their sexuality. Accordingly, it was open to find that the applicant’s treatment was by reason of her sex. Was the treatment also less favourable?
It is unclear what, if any, evidence the applicant led on this point. The decision records only the submission on behalf of the applicant that in treating her as a ‘sex object’ the respondent treated her less favourably. It seems to be this issue that the Court was dealing with when Driver FM continued as follows:
Secondly, I accept Mr Con Kanellos’ evidence that the obligation on Ms Zhang to wear short skirts came from a consensual agreement. It was not imposed. Ms Zhang was given the option of working in the gaming area and was requested to wear short skirts. She accepted the opportunity and agreed to the clothing condition. Ms Zhang was not asked to do anything that she was unwilling to do outside the work place. She admitted owning short skirts and wearing them socially. Further, [the article from FHM magazine] shows that Ms Zhang was quite willing to display herself in a sexually alluring and revealing way.[10]
I note that it is not, in itself, a defence to a claim of sex discrimination that the aggrieved person consented to their less favourable treatment, including the terms or conditions offered to them in their employment. If the ‘terms or conditions of employment that the employer affords the employee’ are directly discriminatory, they are in breach of the SDA whether or not an employee agrees to those terms; it is not possible to ‘contract out’ of the SDA. Such an approach is, I would suggest, sensible and necessary to protect the rights of employees, given that they are generally in an unequal position when bargaining with employers.
The Court, however, appears to have reasoned that the applicant’s acceptance of the condition that she wear a short skirt was relevant to whether or not the treatment was, in fact, unfavourable. In addition, the Court took into account that wearing a short skirt was something that she was willing to do outside the workplace where she was also willing ‘to display herself in a sexually alluring and revealing way’.
While it is to be hoped that courts will carefully scrutinise any ‘agreement’ by an employee to comply with a potentially discriminatory requirement imposed by their employer, in my view it was open to the Court here to find, on an assessment of the evidence of the applicant and respondent, that there was indeed a ‘consensual agreement’ that the applicant wear a short skirt. It is interesting to note, however, that the respondent ventured an opinion that the applicant had made the allegation of sexual harassment against him ‘to “get back at him” for making her wear skirts’.[11] This suggests that the respondent, at least, was prepared to accept that the applicant may have been unhappy about the requirement, even if she had initially agreed to it.
However, in deciding that the term or condition accepted by the applicant was not discriminatory, the Court’s use of evidence of the applicant’s behaviour in her personal life is particularly troubling. What the Court’s reasoning appears to assume is that an employer requiring a female employee to dress in a manner which takes advantage of her sexuality in her employment is essentially no different from a woman choosing to dress in a manner which expresses her sexuality in her personal life. The context is surely significantly different, unless perhaps it is accepted that women’s sexuality is a commodity like any other. The Court’s decision appears to treat the applicant as simply having decided to trade what she was otherwise prepared to give away.
Issues of the sexual objectification of women and the ways in which this may constitute a disadvantage to them in society generally are complex and contentious, and have been the subject of a significant body of work.[12] In the particular context of the hotel industry, where it has been said that ‘you can’t sell a beer without a broad’,[13] a number of authors have considered what has been described as the ‘sexualised fantasy of the barmaid’.[14] Grimes, for example, has argued that the ‘process of sexual objectification of women workers’ is a mechanism which permits ‘misbehaviour’ towards them by customers,[15] as well as forming a part of a broader ‘ideology of gender’ that operates in society.
WA lawyer Kristine Guest has similarly argued that a bar-room culture, in which women are ‘sexual objects for the male gaze’, perpetuates a broader culture ‘of sexual harassment and sexual misbehaviour and ultimately sexual assault’.[16] Grimes notes that this does not mean that women bar workers are ‘passive and helpless’ in such situations, and notes that ‘[s]ome women bar workers dress to highlight their sexuality while some do not’.[17] My point here is not to present a simplistic view of women’s sexuality in employment, but rather to highlight that the Court’s reasoning has failed to acknowledge its complexity.
A full consideration of these broader issues is beyond the scope of this article, and these matters were not apparently raised before the Court. Their sociological complexities may appear to some to be ill-suited to a legal dispute between two parties. But, in my view, they cannot be ignored. The Court’s reasoning is unsatisfactory as it fails to articulate or examine the potentially contentious assumptions concerning women’s sexuality and its commodification on which it is based. In the event that such issues arise again before a court it is to be hoped that they may be more rigorously agitated. Particular attention should be given by any potential applicant to what evidence they may lead as to the ways in which their ‘sexualisation’ may have amounted to less favourable treatment. Evidence from the applicant, other women, sociologists or other experts might address these questions.
Indirect discrimination under s 5(2) of the SDA was not pleaded by the applicant in the present matter, but it is interesting to consider briefly how it might be argued in the event that a similar case were to arise.
Indirect discrimination takes place where an alleged discriminator imposes or proposes to impose a ‘condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of the same sex as the aggrieved person’. A respondent is able to avoid a finding of discrimination if they are able to prove that the condition, requirement or practice was ‘reasonable in the circumstances’.[18]
Significantly, an argument of indirect discrimination cannot be met by a simple response that an employer exploits equally the sexuality of all staff, male and female. It is the potential for disparate impact between the sexes that indirect discrimination provisions seek to address.
A claim of indirect discrimination would put directly in issue the effect on women in the workplace and, potentially in society more generally, of their sexual objectification. It would require a court to ask whether a condition that a woman dress in a manner that exploits her sexuality ‘has or is likely to have, the effect of disadvantaging’ women. Some commentators may argue that such a conclusion is self-evident; Guest states, for example, that ‘it is beyond intelligent argument that social institutions that continue to represent women as little more than sex objects are part of [the] social problem [of sexual assault]’.[19] I have suggested above, however, that such complex issues would seem to require both cogent evidence and careful articulation.
I have questioned the Court’s reasoning on the issue of sex discrimination in a number of areas. In my view, it fails to adequately compare the applicant’s treatment and that of a hypothetical male employee in similar circumstances and instead introduces an unhelpful distinction between ‘sex discrimination’ and ‘sexual discrimination’. It also would appear to make a highly contentious assumption about the sexual objectification of women in employment, suggesting that women’s sexuality is a commodity that can fairly be traded, and permitting the Court’s scrutiny of the personal life of the applicant.
If the reasoning of the Court is applied uncritically in future cases, it may limit the ability of women to challenge sexist work practices, such as gendered dress requirements. In such cases courts should be prepared to grapple with the difficult issue of the potential disadvantage to women of being treated as ‘sex objects’ in employment. Those representing applicants in such matters should consider what evidence they may lead to satisfy the court of ‘less favourable treatment’, and may wish also to consider how an argument of indirect discrimination may allow for the raising of broader issues concerning the disadvantage to women of the commodification of their sexuality.
[*] JONATHON HUNYOR is a lawyer employed by the Human Rights and Equal Opportunity Commission.*
© 2006 Jonathon Hunyor
email: jonathonhunyor@humanrights.com.au
* These are my personal views and not those of the Human Rights and Equal Opportunity Commission. My thanks to Sally Moyle and Craig Lenehan for their helpful comments on drafts of this article.
[2] The SDA proscribes sex discrimination against an employee ‘in the terms or conditions of employment’ or ‘by subjecting the employee to any other detriment’ (s 14).
[3] Zhang, above n 1, [50].
[4] Ibid [59].
[5] Ibid [60].
[6] See, for example, Aldridge v Booth [1988] FCA 170; (1988) 80 ALR 1, Hall v Sheiban [1989] FCA 72; (1989) 20 FCR 217, 277 (French J); Elliott v Nanda [2001] FCA 418; (2001) 111 FCR 240.
[7] Shaw v Perpetual Trustees Tasmania Ltd (1993) EOC 92-550, cited with approval in Cooke v Plauen Holdings [2001] FMCA 91, [33].
[9] Ibid [151].
[10] [2005] FMCA 111, [61].
[11] Ibid [27].
[12] See, eg, Catharine MacKinnon, Toward a Feminist Theory of the State (1989): ‘All women live in sexual objectification the way fish live in water’ (149).
[13] Susanne Lloyd-Jones, You Can’t Sell a Beer Without a Broad: the Political Economy of Sexuality in the Hotel Industry (B Ec (Social Sciences) Hons Thesis, University of Sydney, 1993) cited in Dianne Kirkby, Barmaids: a History of Women’s Work in Pubs (1997).
[14] Kirkby, above n 12, 206; see also Sandra Grimes, ‘Across the Bar: Women’s Work in Hotels’ in Lenore Manderson (ed), Australian Ways: Anthropological Studies of an Industrialised Society (1985).
[15] Grimes, above n 14, 73.
[16] Kristine Guest, quoted by Helena Webb, ‘Skimpy barmaids should cover up’, ABC Radio, Western Australia, 10 March 2005: <http://www.abc.net.au/wa/stories/s1320736.htm> at 21 June 2005.
[17] Grimes, above n 14, 73.
[19] Guest, above n 16.
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