Sydney Law Review
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ANNA CHAPMAN[#] & GAIL MASON[*]
Australian States and territories have in place anti-discrimination statutes which provide a mechanism for lodging complaints alleging discrimination on specified grounds. Most of these statutes now contain provisions relating to sexual preference. New South Wales was first to introduce such protection through an amendment in 1982 to that States Anti-Discrimination Act. This amendment added a new Part to the Act prohibiting direct and indirect discrimination on the ground of homosexuality.[1] Other jurisdictions followed and apart from Western Australia, all have now incorporated variously worded provisions prohibiting discriminatory treatment related to sexual preference.[2]
In March 1994 the New South Wales jurisdiction was further bolstered to permit the making of complaints in relation to public acts that vilify a person or group of people on the ground of homosexuality.[3] In addition, the Act was amended to include an offence of serious homosexual vilification, the key ingredient of which is that the perpetrator threatens, or incites others to threaten, physical harm towards a person or their property on the ground of homosexuality.[4] Vilification provisions relating to sexuality have not been enacted in other jurisdictions, they remain unique to New South Wales.
The vast majority of discrimination and vilification complaints lodged in Australia under all prescribed grounds are brought to a conclusion through investigation and conciliation. The different statutes in Australia provide for complaints to be lodged with a statutory officer or agency in New South Wales this function is performed by the Anti-Discrimination Board (the Board) which investigates each complaint and in most cases, attempts to resolve the complaint through conciliation. These processes are confidential and only limited information about the passage and outcomes of complaints is on the public record.[5] It is only if conciliation is thought to be inappropriate or has been tried and failed that a complaint which is accepted by an agency may proceed to a public hearing before a specialist tribunal. In New South Wales, until 1998, this was the Equal Opportunity Tribunal (EOT).[6] In practice, only a very small proportion of complaints progress to such a hearing (approximately 5 per cent).[7] The law in action in anti-discrimination jurisdictions takes place largely in a privatised setting of alternative dispute resolution.
There is a dearth of publicly available information about the nature, processes of investigation and conciliation, and outcomes of discrimination and vilification complaints lodged under sexuality grounds, particularly in relation to women complainants. Although there exists a modest body of Australian empirical work on complaints under the grounds of race and sex[8] and also general accounts relevant to all prescribed grounds,[9] this work only indirectly touches upon the specifics of complaints lodged under sexual preference grounds. The information that is available (including annual reports and other publications of the various agencies that administer the legislative provisions) raises several important questions about the law in action in this area. It suggests that although more complaints have been lodged annually under the New South Wales homosexuality discrimination provisions than under any other sexual preference ground in an Australian anti-discrimination statute,[10] the number of discrimination complaints and vilification complaints is relatively few in comparison to reported levels of discrimination and harassment experienced by lesbians and gay men.[11] Notably, women lodge far fewer of the complaints under sexual preference grounds than do men. Women have lodged approximately 17 per cent of the homosexuality vilification complaints and up to around 33 per cent of the homosexuality discrimination complaints in New South Wales.[12] The proportion of women complainants is generally lower in other jurisdictions. In addition, few complaints lodged under sexual preference grounds in Australia have proceeded past the confidential processes of conciliation to a full hearing before an antidiscrimination tribunal.[13] Until 1997, in none of these cases was the complainant a woman.[14] There is then a real paucity of tribunal decision-making in relation to sexual preference discrimination, particularly as it relates to women. Importantly some annual reports of the ADB indicate that discrimination complaints lodged under the NSW homosexuality provisions have been less likely to proceed to a hearing before the EOT than complaints lodged under most other grounds in the NSW Act.[15]
This paper builds on existing Australian empirical research by profiling the conciliation of discrimination and vilification complaints lodged by women under the homosexuality ground in the Anti-Discrimination Act 1977 (NSW). It explores the nature of the conduct subject to complaint under homosexuality provisions and seeks to draw out the patterns evident in these complaints. In this way the paper adds to the literature on the characteristics of discrimination and harassment experienced by lesbians and gay men. In addition, it considers the processes and outcomes of confidential conciliation as they operate in relation to this group of women complainants. Overall, our object is to provide a knowledge base that goes some way toward addressing the lack of information about discrimination, sexual preference, and the law.
The Board opens a file (and allocates a number) in relation to each complaint it receives. Each case file contains correspondence (including the letter of complaint), notes of telephone conversations and other documents relevant to the particular complaint. We examined the Boards files for complaints lodged by women solely under the homosexuality discrimination and vilification provisions and those lodged under these provisions plus some other ground. Confining our research to complaints that had been closed between January 1993 and February 1997 produced a total of 51 files. One of these was clearly not intended to be a complaint but was rather in the nature of a written inquiry. For this reason it has been excluded from analysis.
Quantitative and qualitative data was extracted from the remaining 50 files using a pre-tested data collection schedule designed to summarise the details of the complaint and the processes of investigation and conciliation. All data was extracted in compliance with a confidentiality protocol that maintained the anonymity of all parties. In addition, the Boards Complaint Handling Manual was examined and interviews were conducted with the Manager of the Complaints Resolution Branch and the Manager of the Education Unit. The structure of this paper adopts the headings used to record the relevant data in the case files.
The identification of both the ground or grounds of the complaint and the aspect of life in which the alleged conduct occurred appears to be the result of an informal process involving both the complainant and the Board. Often the complainants letter will quite clearly state the ground and/or area of complaint. In other cases this may not occur. Each complaint handler determines these categorisations from the information in the written complaint and any accompanying notes or documents. This categorisation is then recorded on a data entry sheet attached to each file. The following tables reflect these categorisations of the Board for all 50 complaints closed during the four year time period.[16]
As this table indicates the vast majority of complaints were lodged under the ground of homosexuality discrimination alone. Included in this category are two complaints in which the complainant claimed that she was discriminated against because of the homosexuality of a person with whom she was associated. In the one complaint that involved homosexuality discrimination in conjunction with another (non-homosexuality) ground, this ground was sex discrimination. This complaint was lodged by a flight attendant who identified the conduct as sex-based and sexuality-based harassment by her supervisor. Initial categorisation decisions made by ADB complaint handlers are often based upon what can be relatively limited information provided at the outset by the complainant. Whilst this practice appears to work effectively in most cases
Table 1: Grounds of Complaint
|
Ground of Complaint
|
Number
|
|
Homosexuality discrimination alone
|
44 (88%)
|
|
Homosexuality vilification alone
|
5 (10%)
|
|
Homosexuality discrimination + sex discrimination
|
1 (2%)
|
|
Total
|
50
|
there were some instances where we, with the hindsight of further documentation within the files, questioned the appropriateness of some of these initial classifications. For example, in one case, two women in a relationship with each other sought to make overseas travel arrangements through a travel agency. An employee of this agency, having been informed in confidence that one of the women was HIV positive, breached this confidence and as a consequence the immigration authorities in the country of destination learnt of her HIV status. She was denied a visa to that country. Both women lodged a complaint. It appears to us that these complaints would have been more appropriately categorised as disability discrimination and discrimination on the basis of association with a person with a disability.
In terms of the area of complaint, Table 2 below indicates that close to half the complaints related to the area of employment. Approximately one third related to the provision of goods and services. These figures are generally reflective of the Boards statistics in relation to all complaints that the Board receives, although it is noted that a higher percentage of the complaints in our study related to goods and services than the Board generally receives.[17] Some of the cases in our study involved more than one incident or more than one area of complaint. Table 2 reflects the way in which the officer has categorised what he or she perceives to be the main area of complaint.
In addition to the grounds and areas of complaint, we were interested to determine whether the discrimination complaints in our study involved issues and claims of direct discrimination, indirect discrimination, or both. Indirect discrimination provisions are generally thought to be under utilised in Australia. Commentators have suggested that this reflects a range of factors including a lack of understanding and consciousness by the general public of the concept of indirect discrimination, an under-recognition of indirect discrimination by conciliators, and bureaucratic imperatives of agencies which favour focusing on issues of direct discrimination over potentially more complex, and so time-consuming, issues of indirect discrimination.[18]
Only three case files in our study contained explicit reference to the type of discrimination raised in the allegations two noted direct discrimination and the third, indirect discrimination. Despite there being space on the case file data entry sheet to record whether the complaint is one of direct or indirect discrimination, this was rarely completed by the complaint handler. Although the factual allegations and other material contained in the case files is not sufficient to form any firm view about this matter, it appears to us that claims of indirect discrimination are potentially found in one-quarter of the case files in our study. These related to, for example, practices or policies of respondents, particularly as they impacted on lesbian couple relationships (the presence of which in the case
Table 2: Areas of Complaint
|
Area of Complaint
|
Number
|
|
Employment
|
23 (46%)
|
|
Provision of goods and services
|
15 (30%)
|
|
Accommodation
|
3 (6%)
|
|
Education
|
0 (0%)
|
|
Clubs
|
1 (2%)
|
|
Othera
|
3 (6%)
|
|
Vilification
|
5 (10%)
|
|
Total
|
50
|
a. This category includes two complaints about the differential impact of legal rules and discretionary government decision-making on same-sex relationships and a complaint about the pictorial portrayal of lesbians in a mainstream magazine. These three cases were all declined by the Board see below
files is discussed below). In their study of complaints of sex discrimination handled in the Victorian Equal Opportunity Commission, the South Australian Commission and the Sydney office of the Human Rights and Equal Opportunity Commission (HREOC), Hunter and Leonard formed the view that potential claims of indirect discrimination could be seen in 18.4 per cent of the complaints in their study.[19] It is possible that our higher estimation may be attributable to the prevalence of couple relationships in our study. Discrimination against a relationship appears, by its nature, to raise issues about the differential impact of policies and practices on different forms of relationship.
The average complaint in our study was one of homosexuality discrimination and involved the concept of direct discrimination. Yet a sizeable proportion of cases did raise potential issues of indirect discrimination, particularly in relation to lesbian relationships. Complaints were most likely to be lodged in relation to employment, rather than other areas such as accommodation, the provision of goods and services etc.
In this section of the paper we seek to profile what we see as being the nature of the conduct subject to complaint in the 50 case files examined. This includes considering some of the main distinctions between the cases, as well as drawing out the commonalities that link individual complaints. Two pronounced themes are identifiable in the qualitative data we collected. These are the presence of an actual or assumed lesbian relationship and secondly, the prevalence of harassment. Each of these is examined separately. Complaints lodged under the homosexuality vilification provisions also warrant separate exposition.
Prior to exploring these themes a word of caution is warranted. We are mindful that the information upon which we base this section of our paper is drawn from the case files of the Board. Clearly this information has been constructed in light of the requirements of the Act and the documentation contained within these files is partial in several respects. It should not be taken to represent objective information of the full circumstances of each case and nor does it necessarily contain all that might be potentially important in terms of the Acts requirements.
The presence of an actual or presumed same sex couple relationship is a notable feature in the complaints. Indeed 27 out of the 45 complaints alleging discrimination (60 per cent) revealed some presence of a lesbian relationship as a factor in the alleged treatment.[20] This arose in three main contexts: policy and practice type claims; employment situations; the provisions of goods, services and accommodation.
Thirteen of the 27 discrimination complaints with a connection to a lesbian relationship raise policy and practice type claims (48.1 per cent). We viewed policy and practice type issues as being ones which on their face raised what appeared to be a (formal or informal) policy or practice of the respondent which had potential impact on lesbians as a group. In this sense the complaint had direct implications beyond the particular complainant (and, where relevant, her partner). Although arguably all complaints alleging homosexuality discrimination involve issues of systemic heterosexism extending beyond the individual complainant, it was nonetheless possible to identify a group of case files in which it was apparent from the material available that the conduct complained of was part of a wider practice. In many of these cases it was apparent from the file that the respondent acknowledged the existence of the policy decision or practice, in several cases seeking to justify it by reference to, for example, existing legal rules or business necessity.
These 13 policy and practice type complaints arose in varied circumstances. One related to New South Wales stamp duty law which exempted property transfers between partners in heterosexual relationships whilst subjecting transfers between partners in same-sex relationships to full tax. Two were about the policies of health insurance funds that did not recognise same sex couples for family cover. In another complaint two women and their children were denied a family ticket for a chair-lift ride on the basis that the policy of the service provider did not recognise them as a family. In another case, the proprietor of a guesthouse refused a lesbian couple accommodation at her bed and breakfast explaining to the women that homosexuals are not welcome in her house. Two complaints were lodged by women who were directed by a nightclub proprietor to stop kissing because he had recently decided to change the image of the club and get rid of that sort of reputation (the words used in the letter of complaint).
The number of complaints relating to the ways in which lesbian couple relationships are disadvantaged by formal practices and policies, including legal rules and government policy, is notable and would seem to reflect that there is much discrimination against non-heterosexual intimate relationships.[21] Much of this was lawful at the time these complaints were lodged and is still lawful today. Same sex couples are not explicitly and directly protected under either sexual preference grounds or marital status grounds in anti-discrimination statutes. It is only in the last three years that a tribunal has recognised that discrimination against a homosexual couple may amount to discrimination on the ground of homosexuality.[22] In addition, unfavourable treatment of same sex relationships by other legislation, such as the Stamp Duties Act 1920
(NSW), has always been lawful.[23] The NSW Gay and Lesbian Rights Lobby has identified 160 pieces of NSW legislation that appear on their face to discriminate against same-sex couples.[24]Ten of the 27 discrimination complaints which contained the presence of a lesbian relationship are found in the area of employment (37 per cent). In some of these cases it appeared probable from the case file that the supposed lesbian relationship existed more in the minds of co-workers than in reality. This construction seemed to be built on a view that lesbian co-workers are likely to be having sex with each other and also that lesbians are sexually predatory. So, for example, in one case the complainant describes how a male co-worker had told a community service worker who was visiting the complainants workplace that she ought to watch out for [the complainant], shes one of those lesos. She likes to order you around because it makes her feel butch and she tries to crack on to the work experience girls (the complainants words). The impact of this sort of workplace environment is quite clear it isolates lesbians from women friends and allies at work and at the same time provides a powerful discouragement against being those allies and friends.
Complaints involving lesbian relationships also related to the provision of goods, services and accommodation. For example, one complaint was that a real estate agent had preferred a heterosexual couple over the offer made by two lesbian couples to purchase a house. In a case involving emergency housing, a woman was given notice to vacate after the manager learnt that she had commenced a sexual relationship with another woman resident. The substance of a third case was that a surgeon had refused to perform surgery to further improve the transgender complainants constructed vagina on the basis that she was in a sexual relationship with a woman. The complainant alleged that the specialist had said that given her relationship with a woman, she did not require a Rolls-Royce vagina and further surgery would be a waste of time.
The number of complaints involving an actual or assumed lesbian relationship raises a number of questions. Does this indicate that for the most part lesbians are invisible (particularly in the public realm of workplaces) but become visible when a sexual relationship is identified?[25] Might it also given that several complaints involve accusations that two women workmates are lovers when they probably are not reflect a particular form of sexualised harassment that lesbians (and some heterosexual women) suffer? Does this reflect a view that lesbians are seen as sexually predatory, or alternatively, that knowledge that a woman is a lesbian leads to others having a heightened awareness of her as a sexual being (and a heightened imagination) a consequence of which is an overemphasis and interest in her sexual activities?
The second main theme we identified in the data was the presence of conduct that we have described as harassing. Although the severity and intensity of the behaviour upon which such complaints were based varied greatly, there was an identifiable body of cases that involved behaviour (verbal, physical or both) that appeared to humiliate, offend or intimidate the complainant.[26] Of the total 50 vilification and discrimination cases, 23 (46 per cent) involved an incident or incidents experienced by the complainant as harassing in some way. Twenty of these 23 complaints were in the area of employment. This means that 86.9 per cent of employment cases involved behaviour that the complainant appeared to experience as harassing.
Three of these cases included clear incidents of physical violence. One involved physical violence, verbal threats and insults by a stranger outside an inner-city hotel. The complainant withdrew her complaint of homosexuality vilification after a successful criminal prosecution. The second case involving physical violence was coded as homosexuality discrimination. The conduct comprised verbal harassment and physical assault of a high school teacher by students. Case file notes include allegations of constantly being touched up by male students and statements such as how would you like my foot in your face and that gay teachers have been gotten rid of here. There was a strong sense in this case that the complainant was not just distressed by these incidents but feared for her life. She took these threats very seriously as they were made within the context of the previous murders of gay male teachers in Sydney. The complainant was aware that one of the students responsible for the harassment was a close friend of a student who had been convicted of the murder of one of these teachers. Many of these cases involved a series of on-going comments, often made by more than one person, that appeared to instil feelings of discomfort, anxiety or humiliation in the complainant. A typical example might be: Shes a homosexual, it makes me sick to look at her. As a result of hearing conversations about her sexuality one complainant said that she felt physically sick from anger and was unable to finish my shift. In employment cases it was quite common for the complainant to have been working for some time with a group of people who were not aware of her sexuality. Upon the complainant either deliberately informing others of her lesbianism, or her sexuality becoming the topic of speculation and discussion, her relationship with co-workers changed. In one very alarming case the complainant and a gay man in her workplace (who also lodged a separate complaint) were subjected to ongoing harassment on a daily basis over a number of years, including comments such as the sooner all homosexuals die the better for the rest of us. Numerous incidents were recorded by the complainant including: the depositing of pornographic material in her mail, letting the tyres down on her motor bike, urinating in the petrol tank, and in one instance, tampering with the brakes on her bike. Not surprisingly the complainant feared for her safety and had felt it necessary to take steps to protect herself, including moving to a new house and taking out a silent telephone number. This case was eventually referred to the EOT, where it was dismissed on jurisdictional grounds.
In general the comments and behaviours that we characterise as harassment are stigmatising and derogatory, often having the effect of marginalising the complainant. The conduct complained of appears to be rather different from behaviours described in complaints lodged by women under sexual harassment provisions. In her Interim Report on sexual harassment in employment cases in Victoria (cases closed in 1991 and 1992) Jenny Morgan found that more than 85 per cent of cases alleged some form of touching.[27] In most cases the touching was seen as sexual, for example, on the breasts or buttocks. In our study, apart from the one case of homosexuality discrimination where physical assault was alleged, in no cases characterised as harassment (indeed, in no other cases either) was this kind of touching alleged by the complainant.
As to the gender of the alleged harassers, in eight of the claims the alleged harassers comprised a group of male and female co-workers (40 per cent of the employment complaints involving harassment). In another eight cases the alleged perpetrator was one man acting alone (40 per cent) and in three cases it was a group of men (including clients and male high school students) (15 per cent). In one case the alleged harasser was a woman supervisor acting alone.[28]
It is also pertinent to note that, similar to Morgans findings, 85 per cent of complainants in complaints involving harassment in employment situations were no longer working in the workplace where the discrimination was said to have taken place.[29] Although details are somewhat sketchy in some cases, in 17 complaints (77.3 per cent of complaints where the complainant was no longer working in the workplace concerned) the case files indicate that the complainant herself viewed the changes in her employment status as being a direct negative consequence of the conduct in relation to which she lodged her complaint. This contrasts with Hunter and Leonards finding that one-third of the complainants in sex discrimination cases were still employed in the workplace where they allege the discrimination occurred.[30] The high proportion of complainants in our study who have left the workplace in which they experienced harassment may reflect the sense of discomfort, intimidation or humiliation that harassment can produce. In addition it would appear to reflect the close contact between individuals in workplaces and the (usually) ongoing nature of the relationships involved. People see each other frequently in close quarters on a continuing basis, rather than in a one-off situation as is more likely in the provision of goods and services. This allows potential for harassment to escalate from perhaps an initial incident. It is also harder for individuals to avoid contact with harassers in workplaces. The strong presence of harassment in the complaints we examined makes our cases appear somewhat different from the forms of discriminatory treatment prevalent in cases lodged under the ground of sex discrimination. In their study of sex discrimination complaints Hunter and Leonard found that the treatment complained of in the majority of employment cases was in the areas of arrangements for offering employment, selection, terms and conditions of employment (excluding sexual harassment), denial or limitation of access to benefits or opportunities for promotion, transfer or training, and dismissal.[31]
Although Hunter and Leonard excluded complaints that had been lodged as sex discrimination but which concerned only sexual harassment,[32] we make this comparison in order to highlight the apparent difference between the nature of the problem in complaints of sex discrimination lodged by women and the nature of the problem in cases of homosexuality discrimination lodged by women. Of course in situations where the problem appears to be primarily one of sex discrimination a woman is likely to lodge under this ground irrespective of her sexuality. Only eight of the 23 employment cases in our study (34.8 per cent) evidenced the forms of discriminatory treatment that Hunter and Leonard identified under sex discrimination.[33]
Empirical material about the incidence of harassing conduct in employment complaints lodged under other grounds of discrimination, such as race and impairment, is limited. In her study of employment complaints lodged under the NSW Act from 1977 to 1987, Thornthwaite found that only 3.2 per cent of all complaints under the Act involved harassment that was not sexual harassment.[34] More recent information from the Board suggests that approximately one-third of all employment complaints concern work environment and harassment (excluding sexual harassment).[35] Although comparisons are difficult, these figures are noticeably less than our finding that 87 per cent of employment complaints involved behaviour that appeared to be experienced by the complainant as harassing. The extent to which the situations prompting these complaints may be interpreted as amounting to harassment or sexual harassment is deserving of future analysis, especially in light of recent North American arguments for the reformulation of definitions of sexual harassment.[36]
As indicated above, five of the complainants claimed homosexuality vilification. Given the small number it is difficult to generalise about these cases. However, it is interesting that three cases involved conduct directed towards the public generally and in two cases the conduct was directed to the complainants specifically.
The former three cases involved written material disseminated in the public sphere. In two of these the material was produced and distributed by Christian organisations. For example, one complaint was lodged in relation to an item published in a local paper. In an attempt to encourage readers to write in for a booklet entitled Our Sick Society, the item included the following text:
The end of each era in history has been characterised by a marked increase in certain behaviours in society. Violence, sexual license, homosexuality, decline in the interest of God, selfishness. ... Violent entertainment is now mainstream, homosexuality is now celebrated overtly ... in the times of Sodom and Gomorrah a brief reading of these events shows the same pattern. Wickedness, violence, and overt homosexuality.[37]
In the other case the complaint was lodged in relation to a car bumper sticker proclaiming Register poofters not guns, before they kill us all. The two cases of vilification complaints directed towards specific individuals involved either verbal or physical abuse, or both. These complaints were about violence and abuse that took place in a public place. In one case the alleged wrongdoer was a neighbour and the other involved the incident outside an inner Sydney hotel referred to above. In terms of outcome, four of the five vilification complaints were declined.[38] This is discussed further below in part 8A of this paper.
Most complaints of homosexuality discrimination were characterised by the presence of a lesbian relationship (real or imagined). These cases arose in a range of contexts including most notably respondent policies and practices. Almost half the complaints in our study, and 80 per cent of employment complaints, were marked by harassment. In many cases this conduct was ongoing and experienced by the complainant as marginalising. This behaviour appears to differ from that which is found in complaints of sexual harassment. Vilification cases involved both written material disseminated in the public sphere and verbal and physical abuse directed specifically at the complainant.
Although we were interested to identify the race, ethnicity, age and occupation of complainants this was not always possible. Information about the age, race or ethnicity of complainants was rarely recorded in case file data entry sheets.[39] Accordingly we only discuss the occupation of complainants. We do examine whether complainants were acting as individuals in bringing the complaint. This latter query is examined first.
We examined the extent to which complaints alleging homosexuality discrimination and vilification were brought by individual women acting alone.[40] The most obvious way in which a complainant is going it alone is if she clearly lodged the complaint on her own behalf solely and there is no suggestion that her complaint is connected to any other. Hunter and Leonards study of sex discrimination indicates that the vast majority of complaints (90.8 per cent) were lodged by complainants acting alone in the sense described above.[41] They concluded that the burden of tackling sex discrimination is being borne primarily by individual complainants.[42] A view expressed in this earlier work, and with which we agree, is that group action may be more likely to result in an outcome delivering systemic change. In our opinion, it may empower complainants to be active participants in the model of dispute resolution contained in the Act by better positioning them to be able to match the skills, financial and positional power of respondents, particularly of the repeat employer respondents we saw.[43]
The case files mostly do not contain data readily applicable to forming a response to the question of whether complainants in our study were going it alone. Although the Act (in sections 88 and 88(1A)) sets out different permutations of who may lodge a complaint and on whose behalf they may lodge it, this information was not recorded in the case files in any consistent manner.[44] Moreover it is far from clear that such a categorisation would actually get to the core of the issue here, particularly given the prevalence of complaints involving couples.
What we can say is that no complaints were lodged by a representative body (although in four cases gay and lesbian community groups appeared to have been consulted by the complainant at some stage in the dispute). All complaints identify one complainant only. This would seem to reflect the Boards practice of opening a file, coding and allocating a complaint file number to each written complaint that it receives, in preference to opening a file with two complainants or joining complaints in one case file. This practice of individualising complaints[45] means that if two women (in an intimate relationship with each other or not) write to the Board complaining in relation to the same incident or incidents then it seems that the Board would record two complaints and open two separate files. From our observation the Board may effectively investigate and conciliate the two complaints together but they are unlikely to formally join them.
Although all case files contained one complainant only, this clearly did not mean that all complainants were indeed on their own. Twelve of the 50 complaints (24 per cent) were directly linked with each other in the sense that they were lodged by women who were in an actual or perceived lesbian relationship and were complaining separately about effectively the same conduct. A further two complaints were lodged in relation to workplace dismissals stemming from the same situation. Due to this prevalence of couple relationships the number of complainants lodging and taking part in the processes as individuals on their own is likely to be much lower than that found by Hunter and Leonard.
The case files for the 23 complaints relating to employment contained information identifying the complainants occupation at the time the allegedly discriminatory conduct took place. As noted above, only one of these complainants was still attending the workplace in question. Seven complainants (some 30 per cent) were employed as receptionists, secretaries and in general clerical functions such as account keeping. The remainder were employed in a variety of occupations including community worker, teacher, waitress, and flight attendant. Noticeably, our group of complainants did not reflect the striking tendency towards the white collar and professional end of the scale found in the Hunter & Leonard study on sex discrimination complaints. Indeed the opposite was found. Only four complainants (17.4 per cent of the employment related cases) would come within the Australian Standard Classification of Occupations category of professional. Our complainants appear to more closely resemble complainants in Morgans study of sexual harassment claims than those in cases of sex discrimination.[46]
None of the complaints in our study involved group actions. Most of the complainants were acting alone, or with a partner or friend. The information available to us on the age and ethnicity of complainants was too limited to allow any conclusions. In terms of occupational status, the complainants who lodged employment complaints came from a diverse range of occupations. Less than 20 per cent of them were professionals according to the accepted definition of that term.
In this section of the paper we seek to profile the characteristics of the respondents to the complaints we examined. As with the identification of the ground and area of complaint, ascertaining the identity of the respondent or respondents appears to be an informal process involving both the Board and the complainant. In some cases the complainants letter of complaint clearly identified who she was bringing the complaint against. In other cases complainants were imprecise about such matters (or misunderstood or were not aware of the legal rules about who could be liable under the Act) and it was only after further communication between the Board and the complainant that it became clear who the respondent was. In one vilification case that did not proceed very far, a respondent was never identified. In examining the characteristics and nature of the respondents, we have separated the five homosexuality vilification complaints from the homosexuality discrimination complaints. Discrimination complaints are examined first.
Only two cases in our study identified more than one respondent. These two complaints (brought by two women in a relationship) identified the same two corporate respondents. No cases in our study named the individual wrongdoer as respondent in addition to that persons employer or principal. Complaints invariably identified institutions, corporate entities and other forms of business organisation as the respondent.[47] In contrast, Hunter and Leonard found that in their study of the conciliation of sex discrimination complaints, 20 per cent of their cases involved more than one respondent and that almost 20 per cent of respondents in their study were individuals.[48]
It seems from our examination of the case files that the Board exerts a strong influence in shaping complaints towards having one respondent alone who is the employer organisation or principal of the person who harassed or otherwise discriminated against the complainant.[49] We uncovered an important limitation with this approach. In at least six cases it is apparent from the case file material that the complainant wished to hold the individual person to account (in addition to, or even instead of, the organisation). In all six cases conciliation did not bring this about. An example is provided by the complaint, mentioned above, that a ticket seller refused to sell the complainant a family chairlift ride ticket for her, her partner and their children. The ticket seller apparently insisted that a family ticket was only available for a mother, a father and up to four children (as stated in the letter of complaint). It appears that the ensuing discussion that took place between the complainant and the ticket seller attracted the attention of other people waiting in the queue and was the source of embarrassment for the complainant and her family, particularly when the ticket seller joked with another customer about authentic families (the complainants letter).
The complainants letter of complaint specified the respondent was the ticket seller. The Board identified the ticket sellers employer (the company running the chairlift ride) as the sole respondent and the conciliation was conducted between the complainant and the company. The identification of the respondent as being the company alone rather than the company plus the ticket seller was unduly limiting in this case as part of the remedy that the complainant sought was a personal apology from the ticket seller. She clearly wanted the ticket seller to account for his actions through being involved in the resolution of the complaint. This did not occur. Although ultimately the case was resolved with the company reviewing its policy on same sex families, the complainant receiving an apology from the company plus complimentary tickets, this case provides an illustration of the ways in which complaints may be filtered and outcomes shaped by the processes through which the respondent(s) is identified, which, in this particular case, was unfortunate in light of what the complainant sought to achieve out of the process.
Table 3 below records the characteristics of respondents to the 45 complaints of homosexuality discrimination that we examined. As noted, apart from two complaints (brought by two women in a relationship with each other) each complaint identified one respondent only. In each of these two cases, two respondent organisations were identified. The total number of respondents in the 45 discrimination complaints is therefore 47.
Table 3: Respondents to Complaints of Homosexuality Discrimination
|
Respondent
|
Number
|
|
Employer private sector
|
15 (31.9%)
|
|
Employer public sector
|
8 (17%)
|
|
Provider of goods and services private sector
|
10 (21.3%)
|
|
Provider of goods and services public sector
|
7 (14.9%)
|
|
Provider of accommodation private sector
|
2 (4.2%)
|
|
Provider of accommodation public sector
|
1 (2.1%)
|
|
Clubs
|
1 (2.1%)
|
|
Other
|
3 (6.4%)
|
|
Total
|
47
|
In terms of the 23 employment cases, 15 respondents (65.2 per cent) were private sector employers and eight (34.8 per cent) were public sector organisations.[50] What is notable about the private sector employers is that four of them were nonprofit making organisations (17.4 per cent). These respondents included, for example, an animal welfare society and a Christian based youth resource centre. This figure contrasts sharply with the Boards published statistics relating to employment complaints under all grounds. The Boards 199697 annual report records that only 0.6 per cent of all employment complaints in 199697 involved non-profit making associations.[51]
The five case files that allege homosexuality vilification contained seven respondents. The respondents to two complaints were individual people (in one case a group of two men and a woman and in the other case the complainants neighbour) and the respondents to two other complaints were Christian organisations. In one complaint the identity of the respondent was never ascertained.
A phenomena of repeat respondents has been identified in anti-discrimination jurisdictions.[52] In 1993 the Sex Discrimination Commissioner noted that [t]here are four agencies which are regularly involved in the complaint process: the ADF, the Commonwealth Bank, Australia Post and Telecom.[53] Hunter and Leonard state that their study bears out this conclusion. Their report also notes the existence of other repeat respondents such as State/Territory education departments and a national broadcasting organisation.[54] In a paper she wrote in the mid 1980s, Carmel Niland (then President of the Anti-Discrimination Board), noted that 175 complaints had been lodged in a 12 month period against Qantas.[55]
Although five complaints in our study (10 per cent) involved some of the respondents identified above as repeat respondents, and two unrelated complaints involved the same such respondent, our cases are characterised by a different type of repeat respondent. What is notable about the complaints we examined was the number that involved non-profit organisations and more specifically, the fact that seven (14 per cent) involved Christian institutions and/or people acting out of apparent religious motivations.
As noted above, four of the employer respondents were non-profit making organisations. Of these, one was clearly linked to a local Catholic parish and one was unknown. Four further cases (two in the private sector and two in the public sector) involved people whom the complainant identified as being motivated by religious beliefs. One case involved the owner of a restaurant in which the complainant was employed as a part-time waitress. The complainant identified him as a born again Christian who, along with his brother, harassed and intimidated her to the point that she feared for her safety. This involved unwelcome and judgemental questioning about minute details of her daily life. Of the five vilification complaints, two involved publications from Christian organisations.
We found the prevalence of religious organisations or apparent religious motivation to be striking. Religious organisations (and people acting out of stated religious beliefs) do not appear at all in the report of Hunter and Leonard on the conciliation of sex discrimination complaints.[56] Nor do they appear in Board statistics as a type of workplace, or respondent, to complaints.[57] Our finding about the prevalence of religious organisations and people motivated by apparent religious beliefs in homosexuality discrimination and vilification cases confirms the view that homosexuality is still feared and despised by many people who identify themselves as religious. We note such sentiments in the vehement anti-gay stance of submissions made by some religious groups to recent public inquiries in Australia such as the Senate Committee investigation into sexuality discrimination.[58] Our findings confirm that some religious teachings and groups pose a barrier of significant proportions to the project of gay and lesbian equality and dignity. Our concern with this is heightened by the current trend of transferring functions previously performed by government agencies, such as employment placement services, to organisations with religious affiliations. Moreover, we note that this shift in service provision is taking place in the context of a revitalised world-wide anti-gay Christian Right.[59]
There was a clear tendency in the discrimination complaints in our study to identify as the sole respondent the employer organisation of the person who the complainant alleges was discriminatory towards her. No case identified an individual as potentially liable as an accessory. We saw some limitations with this approach. What is most notable about respondents to the complaints in our study is the prevalence of non-profit making organisations and, in particular, religious bodies and the presence of people apparently motivated by religious beliefs.
Similar to other State and Territory anti-discrimination statutes, the New South Wales Anti-Discrimination Act provides parameters rather than detail on how the President and the Board should go about fulfilling their complaint handling tasks under the legislation. The Act requires that each complaint that has been lodged be investigated and that where the President forms the view that it may be resolved by conciliation, he (in practice the officers of the Board) must endeavour to do so.[60] The day to day work of complaint handling is undertaken by some 13 officers employed in the Boards Complaints Resolution Branch.
The New South Wales Act, like other Australian statutes, neither defines nor explains the meaning to be given to the words investigation and conciliation. Australian anti-discrimination literature gives these words a relatively opentextured meaning.[61] Although Tribunal and Court decisions place some de facto limits on investigation and conciliation, the President and the Board have been largely left to formulate their own processes and procedures for carrying out these functions, which the Board has done most notably through the development of a lengthy and detailed Complaint Handling Manual.
This section of the paper explores different facets of the investigation and conciliation processes conducted by the Board in the 50 homosexuality discrimination and vilification complaints we examined. In particular we seek to profile what the Board actually did under the rubrics of investigation and conciliation, the role of complainants and respondents in these processes and whether conciliation conferences were held. We also examine the time taken to deal with complaints and whether complainants and respondents had legal or other representation.
Most of the complaint files we examined reflected (with some variations) the approach to investigation detailed in the Boards Complaint Handling Manual. A letter of acknowledgment was, in all cases but two, posted to the complainant within a few days to a week of the Board receiving the complaint. This letter frequently advised the complainant of expected delays of several months before the complaint would be allocated to an officer. Following allocation to an officer a detailed statement of allegations was drawn up in consultation with the complainant. For those complaints which proceeded, a pro forma letter was then sent to the respondent enclosing a copy of the allegation and requesting responses to the questions. This was likely to be followed by a series of written and telephone counter-responses with relevant parties. Although this procedure is described in the Manual as investigation it is clear that the Board adopted a primarily passive approach, requiring the complainant to bear the responsibility for gathering evidence to substantiate her allegations.[62] Several complainants in our study appeared to have difficulty in fulfilling this role. For example in one case the complainant was required to obtain statements from others in her workplace before the complaint would proceed.
Respondents were notified in 20 cases only. This represents 40 per cent of cases overall and 48.8 per cent of the cases that were not formally declined by the Board (or otherwise found to be outside jurisdiction). The 60 per cent of respondents who were never contacted is substantially higher than the 25.4 per cent found in Hunter and Leonards overall sample of sex discrimination cases.[63]
The reasons why the Board did not contact the respondent in almost half of all the cases that ostensibly proceeded to conciliation are not apparent from the case file material. We discovered however the existence of a negative relationship between how long the complaint sat in the backlog before investigation commenced and the likelihood of the respondent(s) being notified. Respondents who were notified generally heard from the Board fairly quickly. In 15 of the 20 cases where the respondent was notified, investigation had begun within three months after the Board received the letter of complaint. Respondents were notified in only two of the ten cases where investigation took more than four months to commence.
Where contacted, most respondents offered multiple responses designed to address different elements of the complaint. In one of the more complex cases, which was eventually referred to the Tribunal, the respondent denied some facts, disputed the interpretation of others, said the matter had already been adequately dealt with, and also denied that the Board had jurisdiction.[64] In total, we identified 30 responses from the respondents who were notified (in the 20 cases). The following table identifies these different responses.
Table 4: Response of Respondents [65]
|
Response of Respondent
|
Number
|
|
Deny facts or dispute the interpretation of them
|
9 (30%)
|
|
Matter already adequately dealt with / is being dealt with adequately
|
6 (20%)
|
|
Locate blame elsewhere
|
2 (6.6%)
|
|
Rely on an exception in the Act
|
3 (10%)
|
|
Deny Board has jurisdiction
|
2 (6.6%)
|
|
Other substantive legal argument
|
2 (6.6%)
|
|
Accept Cs version and seek to rectify
|
2 (6.6%)
|
|
Accept Cs version and seek to justify
|
3 (10%)
|
|
No response forthcoming
|
1a (3.3%
|
|
Total
|
30
|
a.In this case, the complaint lapsed before the respondent provided any response to the allegations.
The most popular response of respondents was to either deny the facts, dispute their interpretation, or both (nine cases). Some respondents denied that they were aware of the complainants sexual preference. Others acknowledged that the conduct complained of had taken place (for example, dismissal) but argued that it had occurred, not because of the complainants sexual preference, but rather, because of, for example, her misconduct such as making too many private telephone calls and putting her feet up on her desk. In relation to a case involving ongoing harassment and intimidation, one respondent acknowledged that the complainant was being harassed by one particular co-worker but viewed this as a personality problem between the two employees (as identified in the respondents letter to the Board) and something that ought to be resolved by the employees in their own time (as opposed to the employers time). None of the complaints involving religious organisations (or people acting out of religious motivations) sought to rely on exemptions in the Anti-Discrimination Act relating to religious practices. The three cases in which respondents raised exemptions or defences in the New South Wales statute related to two complaints where the respondents argued they were justified in revealing the HIV status of one of the complainants. The third case related to accommodation at a guesthouse in which the service provider resided. In this case the respondent argued that she was legally entitled to refuse to provide a room to a lesbian couple who asked for a double bed because the New South Wales Act exempts people who provide accommodation in premises in which they live where the accommodation provided is for no more than six people.[66] A total of two (10 per cent) out of the 20 respondents notified accepted the complainants version of events and recognised the wrong done.
Conciliation is widely seen as a process involving a complainant and respondent sitting around a table discussing the dispute with the assistance of an officer acting as an impartial third party. Indeed, most of the Australian literature on conciliation in anti-discrimination jurisdictions is about conferences, the power dynamics between parties and the role of the conciliator in ameliorating this.[67] The Boards Complaint Handling Manual states that although conciliation conferences are not always necessary to resolve a complaint, ... it is desirable to hold them whenever practicable, so that the parties have the opportunity to relate directly to each other about the matter giving rise to the complaint.[68]
The statistics on the holding of conciliation conferences vary substantially from jurisdiction to jurisdiction and do not provide a strong basis for comparison. Hunter and Leonard found in their study of sex discrimination complaints in Victoria, South Australia and the Sydney office of HREOC that conferences were held in fewer than half the complaints they examined.[69] A study conducted into conciliation under the Western Australian Equal Opportunity Act found that conferences were conducted in only 19 per cent of complaints.[70] McNamaras recent study of racial vilification complaints in NSW uncovered that conferences were held in 9 per cent of cases.[71] Thornthwaites study of complaints in NSW from 1977 to 1987 records that conferences were held in about half the cases.[72] In our study, after excluding the nine cases that were formally declined or otherwise outside jurisdiction, conciliation conferences were held in only seven cases (17.1 per cent of complaints accepted by the Board). Five of these were employment cases (21.7 per cent of employment cases), one related to the provision of services (surgery that the complainant says she was denied) and one to emergency accommodation. Only one was a compulsory conference. According to the Manual, the Board calls compulsory conferences only as a last resort.[73]
In terms of outcomes, conciliation conferences appeared to be relatively effective. Apart from two complaints which were referred to the EOT on the complainants request after unsuccessful conferences,[74] the remaining five complaints that went to a conference all led to resolutions that the complainants appeared to derive some satisfaction from.[75]
Anti-discrimination jurisdictions are intended to provide less formal and less expensive dispute resolution procedures than exist under the formal justice system. The Board has described the philosophy of conciliation as to allow the parties to a complaint to resolve the issues and settle the complaint in as non-legalistic [a] way as possible.[76]
A number of commentators have expressed the view that the presence of lawyers is undermining the informalism objective of anti-discrimination jurisdictions. The view is that legalism is encroaching into conciliation processes. It is argued that lawyers tend to bring adversarialism and expense, and that their presence may widen rather than narrow the gap of advantage that respondents generally have over complainants, particularly in the employment context.[77] Given these views, we were interested to ascertain whether lawyers (and other representatives) were present in the complaints in our study and if they were, on whose behalf they acted and what impact they had on the complaint resolution process.
(i) Complainants Representation
Only 14 complainants (28 per cent) received representation or advice from an outside body or person at any stage during the dispute resolution process. At the point of lodging complaints, only 16 per cent of complainants had either legal representation or were in receipt of advice from a source such as a trade union or a gay and lesbian organisation. At conciliation conferences this percentage increased to its highest point in the dispute resolution process with 42.8 per cent of complainants having representation or some other source of support present at the conciliation conference.[78]
In 6 cases (12 per cent) advice was provided by a solicitor.[79] This figure of 12 per cent is not substantially different from the findings of studies into sex discrimination and racial vilification complaints.[80] In four cases the complainants received on-going legal advice. In our view these complainants fared better than they might otherwise in that having a lawyer appeared to empower them to keep pursuing their complaints. In three of these cases the complainants secured monetary outcomes that were relatively high compared to other monetary settlements obtained by complainants in our study. The fourth case was referred to the Tribunal before a conciliation conference took place; this course was requested by the complainants solicitor.
Trade unions appeared in three employment cases. Two of these cases involved complainants at the same workplace and while the complaints were still waiting to be allocated to an officer at the Board the union negotiated a settlement directly with the employer on behalf of the complainants. The complainants in four cases had the benefit of advice and advocacy from a gay and lesbian organisation such as GALTAS (Gay and Lesbian Teachers and Students) and the Lesbian and Gay Anti-Violence Project. In one of these cases a member of GALTAS was present during the conciliation conference. Two other complainants had members of their family act on their behalf an adult daughter and a partner.
(ii) Respondents Representation
As discussed above, in only 20 complaints were respondents notified by the Board that a complaint had been made against them. These 20 complaints contained 20 different respondents.[81] The case files indicate that nine respondents (45 per cent of respondents who were contacted) were in receipt of legal representation or other representation from an outside body at some stage during the dispute resolution process. Seven (35 per cent) of these received legal advice. Two other respondents received advice and representation from employer associations. In addition, in one case the matter was handled wholly by the respondents in-house legal department.
It is clear that respondents were considerably more likely to have legal representation than were complainants.[82] This gap in the complainants receipt of legal advice does not appear to have been filled by advice from other appropriate sources. Another notable difference between complainants and respondents were the roles taken by complainant solicitors compared to respondent lawyers. Whilst we were generally of the view that the participation of the solicitors who acted for complainants had a positive influence in the investigation and conciliation processes, we were far less enthusiastic in our assessment of respondents legal representation, most notably the adversarial and obstructionist approach adopted by some individual lawyers.
Questions about delay and the time taken to resolve anti-discrimination complaints in Australia occupy the minds of many commentators, parties and agencies alike. In a survey published in June 1997 the NSW Law Reform Commission found that 45 per cent of the complainants (and one-third of respondents)[83] they surveyed agreed that it had taken too long for the Board to deal with their dispute.[84] The Board itself has expressed concern over the many problems caused by delay, and notably by delay due to a lack of resources.[85] These problems include additional stress for complainants and the difficulty respondents may have in responding to allegations relating to incidents that occurred some time in the past. The Board has suggested that delay often means that the conciliation process takes longer than it otherwise would.[86] We suggest, in addition, that delay may cause some complainants to effectively give up and allow their complaint to lapse. We were interested to ascertain the time taken by the Board to close complaints and also to achieve certain steps in the procedures.
(i) Commencing Investigation and Conciliation
Table 5 below details the amount of time that elapsed between the receipt of the complaint by the Board and the date on which the Board commenced investigation in the sense of taking some steps after an initial letter of acknowledgment had been sent to the complainant. Excluded from this table are nine cases that were declined by the Board and three complaints that appear to have been redbacked.[87] Table 5 records the time frame for the 38 remaining cases.
Table 5: Time Between Receipt of Complaint and the Commencement of Investigation
|
Time From Receipt to Commencement of Investigation
|
Number
|
|
0 1 month
|
13 (34.2%)
|
|
1 < 2 months
|
1 (2.6%)
|
|
2 < 3 months
|
6 (15.8%)
|
|
3 < 4 months
|
8 (21%)
|
|
4 < 5 months
|
5 (13.2%)
|
|
5 < 8 months
|
0 (0%)
|
|
8 < 9 months
|
2 (5.3%)
|
|
9 < 10 months
|
2 (5.3%)
|
|
10 < 11 months
|
1 (2.6%)
|
|
Total
|
38
|
This Table shows that in just over half of these complaints (52.6 per cent), the Board commenced investigation processes within three months after receipt of the complaint. In 13 complaints (34.2 per cent) the Board had commenced investigation from between three months to five months after the complaint was received. Notably, in five out of the 38 complaints (13.1 per cent), the Board had still not commenced investigation eight months after the complaint had been received. Two complaints were in the backlog for eight months, two for nine months and one for 10 months. This last complaint involved on-going harassment of the complainant by her supervisor. The complainant challenged her supervisors behaviour through the companys internal grievance procedures but unfortunately these procedures were grossly inadequate and the harassment continued. By the time the complaint was allocated to an officer the complainant had resigned, indicating that she could no longer work in the current environment.
(ii) Closure of Case Files
We were also interested to ascertain how quickly the Board brought complaints to a conclusion. Table 6 below shows the number of months that expired between the date of receipt of the complaint to the date when the file was closed.
Table 6: Time Between Receipt of Complaint and Closure of the
|
File Time From Receipt to Closure of Complaint
|
Number
|
|
0 < 3 months
|
4 (10.5%)
|
|
3 < 6 months
|
3 (7.9%)
|
|
6 < 9 months
|
12 (31.6%)
|
|
9 < 12 months
|
9 (23.7%)
|
|
12 < 18 months
|
7 (18.4%)
|
|
18 + months
|
3 (7.9%)
|
|
Total
|
38
|
Although none of the empirical literature on the NSW jurisdiction or other Australian jurisdictions is directly comparable to the information presented above, some approximate comparisons are worth making. As part of its Business Plan the Board has set targets for how quickly it finalises complaints. The Board aims to have 20 per cent of allocated complaints finalised in two months, 60 per cent within six months and 85 per cent within 12 months.[88] The Boards annual reports record that the Board has met most of these targets for the years from 1994 to 1997.[89] The information we collected (and presented in Table 12) is not directly comparable to the Boards targets as the Business Plan refers to complaints that have been allocated. We formed the view that in several of the cases we examined substantial delays occurred prior to the complaint being allocated.
In our study the 18.4 per cent of complaints that were completed in under six months contrasts with the almost two-thirds found in McNamaras study of racial vilification in New South Wales or the 46 per cent reported by Hunter and Leonard in relation to sex discrimination.[90] The difference between McNamaras findings and ours might reflect the inclusion of declined cases in McNamaras figures (and not ours). In our study, cases that were declined were generally dealt with quickly.
Most of our complaints (55.3 per cent) were completed in the period from six months to a year after receipt of the complaint, while Hunter and Leonard report a 36 per cent closure rate within the same time period.[91] We can only attribute this difference to longer delays in the New South Wales jurisdiction than existed under the Sex Discrimination Act 1984 (Cth) from 1989 to 1993. We have no reason to suppose that sex discrimination complaints are intrinsically faster to conciliate than homosexuality discrimination complaints. In terms of cases that went for a longer duration, our findings were similar to both McNamaras and Hunter and Leonards research.[92] Three complaints in our study (7.9 per cent) took 18 months or longer to close, with one taking two years and three months.
The responsibility for gathering information lay primarily with the complainant (and, where relevant, the respondent). In contrast to what might be expected, respondents were notified in less than half the complaints and conciliation conferences were held in less than 20 per cent of complaints accepted by the Board. Although respondents were substantially more likely than complainants to have received legal advice, the lawyers who advised and acted for the complainants, in our view, had a positive impact on the Boards processes. In just over half the cases in our study the Board had commenced substantive steps in its dispute resolution processes within three months of receiving the complaint. In half the cases the case file was closed within nine months of receipt of the complaint. There were a small number of cases involving pronounced delays for complainants.
The Board records the outcome for all closed cases.[93] The following table provides a summary of the outcomes for the complaints in our study. Although this table generally adopts the categories used by the Board to record outcome, some of these have been collapsed.[94] Each of these categories is discussed below.
Table 7: Outcomes in Relation to All Complaints
|
Outcomes in Relation to All Complaints
|
Number
|
|
Outside jurisdiction
|
2 (4%)
|
|
Formally declined
|
7 (14%)
|
|
Not settled and not proceeded with
|
29 (58%)
|
|
Settled
|
9 (18%)
|
|
Referred to the EOT
|
3 (6%)
|
|
Total
|
50
|
The most striking feature of these outcomes is the 58 per cent of complaints that were not settled and not proceeded with. This figure compares unfavourably with the 34 per cent of all complaints lodged with the Board under all grounds during the 199697 period that were recorded as Not proceeded with.[95] In making this comparison it should be kept in mind that solid conclusions are difficult given the small number of cases in our study compared to the 1,762 complaints lodged under all grounds in 199697, and the fact that our study spans four years whilst the Boards figures cover only 12 months. These cases are discussed further below.
Table 7 above indicates that a total of 18 per cent of complaints were either formally declined or otherwise determined to be outside the Boards jurisdiction. Such cases did not proceed to conciliation. Cases found to be outside jurisdiction comprise one lodged in relation to the Stamp Duties Act 1920 (NSW) and one lodged in relation to immigration regulations. Cases were formally declined for the following reasons: lacking in substance (two complaints); conduct covered by an exception under either section 49ZQ(3) or section 56(d) of the Anti-Discrimination Act 1977 (NSW)[96] (two cases); complainant not a member of the vilified group (one case); further information needed before the Board could proceed (three cases).[97] In the latter three cases the Board informed the complainant that they could not proceed with the complaint unless the complainant provided further information. In the absence of such information, all three cases were declined.
Of the seven cases formally declined, it is significant that four of these were lodged under vilification provisions. In other words, four of the five cases (80 per cent) lodged under vilification provisions were declined by the Board. The one case lodged under vilification that proceeded to investigation and conciliation was withdrawn by the complainant after a successful criminal prosecution of the perpetrator. This is much higher than the 38 per cent of racial vilification complaints that were declined in McNamaras study.[98] Again, with the small sample of vilification cases in our study comparisons are difficult. However, it is possible that such a difference could be attributed to the newness of the homosexuality vilification provisions which came into force in 1994. The racial vilification amendments were made in 1989. There may be less knowledge in the lesbian and gay community about the types of behaviours prohibited by the legislation. In particular, there is some suggestion from the case files that complainants anticipated that the public act definition and the requirement for such acts to incite hatred, serious contempt or severe ridicule[99] would be interpreted more broadly by the Board. For instance, in one case the complainant stated that her neighbour shouted several times, in the presence of others in the street, that she was a filthy lesbian. The complainant was seeking a public apology. The complaint was seen by the Board as a private dispute and declined on the basis that it did not meet the standard required under section 49ZT(1) of the Act. This is because the comments could not be seen to incite hatred towards, serious contempt for, or severe ridicule of the complainant on the grounds of her homosexuality or perceived homosexuality. The internal Board memorandum recommending that the complaint be declined also stated that although the conduct took place in public there was no indication that the respondent knew the complainant to be homosexual or perceived her to be so.
If the cases lodged under vilification are excluded from the analysis, we find that of the remaining 45 discrimination complaints, five (11 per cent) were declined by the Board. Notably, none of these were in the area of employment. This may reflect the greater breadth of the employment provisions.
The discrimination cases and vilification cases are, in many ways, quite different. The distinctions between the two are apparent when looking at the outcome of the complaint and particularly so in relation to the likelihood that the complaint will be accepted by the Board. Accordingly, it is useful to consider the discrimination cases on their own. Further, in order to consider the conciliation processes in relation to outcomes it is necessary to exclude cases declined by the Board (those that are outside jurisdiction and those that are formally declined by the Board). The following table indicates the proportion of discrimination cases settled, not settled, or referred to the Tribunal. That is, the outcome of those discrimination cases actually accepted by the Board.
Table 8: Outcomes in Non-Declined Discrimination Cases
|
Outcomes in Non-Declined Discrimination Cases
|
Number
|
|
Not settled and not proceeded with
|
29 (70.7%)
|
|
Settled
|
9 (22%)
|
|
Referred to the EOT
|
3 (7.3%)
|
|
Total
|
41
|
Three cases were referred to the Tribunal. In two cases a conciliation conference had been held but the matter was not able to be settled. In the third case, the matter was referred to the Tribunal after lengthy negotiations with the respondent (and its lawyer), because the complainants requested a preference for it to be dealt with at arms length and it appeared to the officers involved that little may be achieved from a conference. In this case the complainant had received ongoing legal advice from the time of lodgment.
A total of 70 per cent of discrimination complaints accepted by the Board fall into the category of not settled and not proceeded with. Under the Boards internal classification system this category is comprised of three sub-categories: contact lost; formally withdrawn; and other. As similar categorisations have been used in other empirical research in this field we originally attempted to adhere to these sub-categories. However, it became apparent, as the analysis of data progressed, that the distinctions between the first two were not always apparent or meaningful for this group of complaints. For a case to be listed as withdrawn there generally needs to be a clear communication from the complainant that she wishes to do so.
This is most likely to happen by letter or telephone. Cases where this does not happen but where the complainant either does not follow up the initial complaint or loses contact at some point prior to settlement will generally be categorised as lost contact. In some instances a complainant may withdraw for a specified reason, which may be either positive or negative. For example, she may achieve a satisfactory outcome through her own endeavours or through other legal avenues (such as the criminal law), or she may not feel capable of proceeding due to emotional stress. However, case file notes suggest that in many instances the difference between the classification of a case as withdrawn or lost contact may simply be a telephone call. By this we mean that if an officer is successful in making telephone contact with a complainant who then states that she wishes to withdraw the complaint, for whatever reason, it will be listed as withdrawn. However, if the officer does not make contact with the complainant (perhaps for the simple reason that she is not at home when the officer telephones) there is no clear communication of withdrawal and the case will be recorded as contact lost. For this reason, and in our opinion, the category of formally withdrawn does not provide a clear or helpful distinction from the category of contact lost.
Of significance are the 70 per cent of discrimination cases, accepted by the Board, that neither settled nor proceeded very far in the conciliation process. A tentative comparison with the research of Hunter and Leonard indicates that this is a much higher rate of non-settlement than for sex discrimination cases. Whilst Hunter and Leonards categories are not exactly the same as the ones used here, they do provide an approximate point of comparison.[100] If we add together all categories used by Hunter and Leonard to denote outcomes that were neither settled nor proceeded with we arrive at a cumulative category that is roughly comparable to, and certainly no narrower than our category of not settled and not proceeded with.[101] Thus an average of 46.8 per cent of sex discrimination cases in these jurisdictions were not settled or did not proceed. This figure is substantially lower than the 70 per cent in our study.
It is of considerable concern that seven out of 10 complaints lodged by women under the homosexuality discrimination grounds were left unresolved. However, it is important to keep in mind the previous point that in some cases the reasons for not proceeding with a case are not always negative and may include cases where the complaint was withdrawn because the complainant received satisfaction either through her own efforts or the efforts of another agency. However, in many cases the complainant simply did not respond to the Boards letters and there is no way of knowing why she chose to let it lapse. The categorical distinctions between formally withdrawn and contact lost appears to be a somewhat arbitrary distinction that may obscure other more meaningful differences between complainants reasons for not proceeding. Such reasons are likely to be very important to the complainant.
Settlement is one way of signifying that the conciliation process has been successful. Indeed, the very distinction between settled and not settled goes to the heart of the purpose of conciliation. A total of nine cases (22 per cent) in our study were clearly settled. This does not compare favourably to the average 42.5 per cent recorded in sex discrimination cases.[102] Despite the centrality of settlement to conciliation various commentators have raised the question: what does it mean to say that a complaint is settled?[103]
In our opinion it is sometimes difficult to determine whether a case is settled or not and the case file notes do not necessarily conclude with the complaint officers view on the matter. Accordingly, in classifying cases as settled we followed the definition of settled by conciliation used by Hunter and Leonard: where some kind of result was achieved as a consequence of the agencys efforts, whether before, during or after a conciliation conference, but before referral of the complaint for hearing.[104] The nature of the settlements in the nine cases categorised in this way are as follows. Settlement may have been achieved in each case through more than one element.[105]
Table 9: Terms of Settlement
|
Terms of Settlement
|
Number
|
|
Financial compensation
|
6
|
|
Change in policy/practice
|
4
|
|
Apology
|
4
|
|
Job reference
|
2
|
|
Education / EEO program
|
2
|
|
Transfer to another workplace of the respondent organisation
|
1
|
|
Support from employer in dealing with co-worker
|
1
|
|
Perpetrator asked to cease conduct
|
1
|
|
Access to club membership
|
1
|
|
Provision of services
|
1
|
The breakdown of financial compensation recorded in each of the six cases where it was agreed upon is as follows: $2,500; $7,000; $500; $8,000; and $8,000 to be shared between two complainants.
Whilst this form of categorisation provides an important overview and is especially useful for the Board in determining the results of its own processes, there are considerable limitations in the categorisation process represented in Table 8. In some cases, especially where there has been a financial settlement, it is clear that both parties are likely to regard the matter as settled. However, in other cases the matter is not so clear cut. For example, if we give a generous interpretation to the definition of settled (some kind of result was achieved as a consequence of the agencys efforts) we might add to our nine settled cases a further case where the complainant decided to withdraw following discussions with an officer which made it clear that the complaint would not succeed. If the complainant feels satisfied with this result, is the case settled? Might we add to our settled category a case where the complainant withdrew because negotiations through her union were successful, if we know that these negotiations were successful in part because the respondent was aware of, and influenced by, the coexisting complaint lodged with the Board?
The difficulty of determining when a case is settled and when this settlement is due to efforts of the Board is apparent. Part of the problem lies in the fact that categories such as withdrawn whether it is being used as a category on its own or as a sub-category of not settled and not proceeded with and settled are not the result of objective criteria and indeed, may not be the mutually exclusive classifications they first appear to be. This is so, especially in light of the knowledge that cases may be withdrawn for positive reasons. For example, there is reason to believe that at least eight of the total number of cases in this study were withdrawn because the complainant had successfully settled through other channels, including resolving the problem directly herself. Whilst it is not always clear, case file notes indicate that in several of these cases the Board may have assisted the complainant to achieve a result with which she was satisfied.
There are many ways of measuring outcome. For example, assessing the extent to which either the complainant or the respondent, or both, are satisfied with the process may be one such way. Perhaps the most effective way to measure satisfaction is to ask parties directly about this. To this end the New South Wales Law Reform Commission recently conducted a postal survey of 425 complainants and 179 respondents who had been party to an accepted complaint finalised in the year to 30 June 1995.[106] For our present discussion it is significant that there was a perception among parties that many complaints were not clearly resolved one way or the other. Interestingly, both complainants and respondents reported more wins than losses.[107] Forty per cent of complainants said that they were satisfied with the final outcome of their complaint to the Board, whilst 66 per cent of respondents reported satisfaction.[108] The Commission notes that the level of satisfaction among parties, and the noted discrepancy, reflects whether or not the individual party thinks they have succeeded.[109]
Given the limitations with existing outcome classifications, and without direct access to the views of parties in our study, we decided that it would be worthwhile to re categorise our cases using a somewhat different means of measuring outcome. Moving away from distinctions between active notions of withdrawal or settled and the more passive sense of not settled and not proceeded with we wondered what the outcome would be if we considered the question: did the complainant appear to gain anything positive from the process of lodging the complaint?
In asking this question we were seeking to determine whether the actual lodgment of a complaint brought about anything that could be interpreted as an improvement on the situation than if, for example, the complainant had not lodged the complaint. Although we recognise that such a question would be best considered through the eyes of the complainant, what we offer is our own assessment of whether, based upon the information in the file, there is evidence that the complainant has gained something from lodging the complaint, either in an individual sense or in the broader sense of effecting a change that may benefit others as well. In considering this question we have attempted to move outside the existing legal framework and away from the more conventional systems of determining success. Cases where there was no evidence of a positive outcome have been grouped together. Cases where there was some, even if minimal, evidence of a positive outcome have been recorded as such.
In considering outcome from this angle, it also seemed useful to view cases that were declined, for whatever reason, as cases that the complainant did not pursue due to the Boards advice and to categorise these separately. The distinction between being declined because your complaint is outside jurisdiction and being declined because the behaviour did not meet the required standards under the legislation may be lost on many complainants. We have doubts as to whether there was a positive outcome in any of the three cases referred to the Tribunal, as one was dismissed on the basis that it was outside the Tribunals jurisdiction and the other two were withdrawn prior to hearing. However, in the absence of information as to why the complainants chose to withdraw we have continued to categorise these three cases in the same way. Table 10 presents the findings of this re categorisation.
Table 10: Positive Outcomes
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Did a Positive Outcome Result From the Complaint?
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Number
|
|
Evidence of some positive outcome
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19 (38%)
|
|
No evidence of a positive outcome
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17 (34%)
|
|
Did not pursue on Board advice
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11 (22%)a
|
|
Referred to the EOT
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3 (6%)
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|
Total
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50
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a. This category includes the nine cases that were declined and two that the complainant did not pursue on the advice of the ADB.
These figures suggest that approximately 38 per cent, or a little over one-third, of complainants are likely to have derived something positive from lodging the complaint: a figure which is higher than the 22 per cent of those cases formally recorded as settled. This positive outcome ranged from financial settlements through to an apology by the respondent or an expression of satisfaction by the complainant that the respondent would rectify the problem. We do not believe that cases where the complainant did not pursue the matter can be interpreted to represent a positive outcome and accordingly such cases have been categorised as no evidence of a positive outcome.
As indicated above, a positive outcome may be the result of either direct involvement by the Board, indirect involvement of the Board, or no involvement of the Board. In some cases it is difficult to tell whether the action of the Board, say, for example, phone conversations with the complainant, had a positive flowon effect or not. However, we were interested in looking further at the cases where there is some evidence of a positive outcome and asking the question: does the outcome appear to be due to active Board involvement? To answer this question we have only categorised a case as having a positive outcome due to Board involvement where we observed that the Board played a direct or active role.
Table 11: Positive Outcomes and Active Board Involvement
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Does the Positive Outcome Appear to be Due to Active Board
Involvement?
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Number
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|
Positive outcome due to some Board action
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13 (68.4%)
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|
Positive outcome not due to Board action
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6 (31.6%)
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Total
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19
|
These figures suggest that while 31.6 per cent of positive outcomes for the complainant were unlikely to be attributable to active or direct involvement of the Board, in 68.4 per cent of positive outcomes the Board is likely to have made a direct contribution to that outcome.[110] However, in interpreting these categorisations it should be kept in mind that while the Board may not play an active role in the settlement of some disputes, its public existence, especially in terms of the prospect of its involvement in a dispute, may be a significant incentive to settlement. For example, fear of adverse publicity (should the dispute go to the EOT) or of being entangled in the legal process may motivate a party to agree to settlement. Thus even where it may not be possible to observe that the Board played an active role in the achievement of a positive outcome for the complainant, its indirect influence remains difficult to measure or quantify.
The point that we wish to make and reinforcing our earlier point that given the subjectivity of all categorisations of this nature any conclusions must be viewed as tentative is that it seems likely that in 38 per cent of all complaints, and 48.7 per cent of those that were initially pursued, the situation prompting the complaint was positively addressed in some manner through the flow-on effects of the complainants decision to lodge the complaint. Although it is impossible to ever accurately determine the degree to which the mere act of lodging a complaint with the Board may assist the complainant in effecting a positive outcome on her own or through other avenues there is some evidence that a substantial proportion of complaints with some positive outcome may have benefited, directly or indirectly, from the Boards involvement.
Only a small percentage (18 per cent) of the total complaints were settled. Further, a substantial proportion (70 per cent) of non-declined discrimination complaints were neither settled nor proceeded with. However, there is great difficulty in determining precise and meaningful measures of outcome. This generated the need for a further measure of outcome which suggests that in 38 per cent of complaints there is evidence of some positive outcome.
In this paper we have examined a relatively small area of discrimination complaint and conciliation. The specifics of these complaints are important in themselves. As the first investigation of complaints lodged under the sexuality provisions of any anti-discrimination jurisdiction in Australia the empirical data synthesised here provides a knowledge base on characteristics, processes and outcomes.
We now know that complaints of discrimination lodged by women under the homosexuality ground of the NSW Act during this period were more likely to emerge in the field of employment and to involve direct discrimination. They were unlikely to be lodged in conjunction with another ground. Only a few complaints were lodged by women under the vilification provisions. Most complaints of discrimination were characterised by the presence of an assumed lesbian relationship, whether such a relationship existed or not. Such cases were more likely to involve situations of policy and practice that could be characterised by indirect discrimination. Notably, almost one half of complaints in our study, and over 80 per cent of employment complaints, were marked by situations of harassment.
Although all complaints were lodged by individuals, rather than group actions, the individualisation of complaints was intensified by the Boards passive approach to investigation and conciliation which meant that the responsibility for gathering evidence fell to the complainant. In contrast, respondents, when notified, were invariably identified as an organisation or institution rather than an individual person. Respondents were substantially more likely than complainants to have received legal advice. In contributing to the knowledge and assertiveness of complainants, legal and other forms of advice appeared to allow them to fare better in their ability to secure favourable settlements.[111] The prevalence of nonprofit organisations among respondents, in particular religious bodies and the prevalence of people apparently motivated by religious beliefs, was notable.
Of those complaints accepted by the Board, only a small percentage were either referred to the EOT or appear to have been settled. This left a substantial proportion of relatively unresolved complaints. However, taking into account the difficulties in determining a precise and meaningful outcome for many complaints, an examination of the evidence for this group of complainants receiving some positive outcome provides a more encouraging result.
Now that we are in possession of a knowledge base about complaints lodged by women under the homosexuality ground in the New South Wales jurisdiction it would be a mistake to assume that the significance of this knowledge is confined to the empirical circumstances from which it emerged. When contextualised against the background of existing Australian research into discrimination complaints lodged under other grounds the study takes on a wider significance. This significance lies less in the provision of concrete conclusions about the comparisons that can be made and more in the plethora of issues that such comparisons raise. Just some of the questions the results of our analysis have prompted us to ask are: Are lesbian relationships such a feature of these complaints because lesbianism is more threatening or simply more visible in the context of a relationship? Is the seemingly high prevalence of harassment unique to homosexuality complaints lodged by women or would further focused investigation reveal it to be a feature of complaints lodged by men under the homosexuality ground and complaints under other grounds (in addition to those lodged under sexual harassment provisions)? What legislative or educational implications might appropriately flow from the noticeable presence of religious organisations and strong religious beliefs in these complaints? Does the apparently high proportion of declined vilification complaints reflect a general issue of community uncertainty regarding the breadth of the provisions or is it a more specific problematic related to homosexuality complaints? Is the low proportion of cases settled merely a consequence of a high drop out rate among complainants or is there something peculiar to the substance of the complaints that mitigates against more successful outcomes? Finally, given the uncertainty in determining precise outcomes in many cases might it be fruitful to reconsider the way in which the outcome of a complaint is measured and defined?
This paper has not sought to provide answers to these questions. In profiling this sample of cases it has aimed to fill a gap in current knowledge about the nature of complaints of discrimination and vilification lodged under homosexuality provisions, specifically complaints lodged by women. When we compare these complaints with what we know about complaints lodged under other grounds it is apparent that a number of contrasts as well as consistencies emerge. Only having now conducted this empirical investigation are we in a position to say that although there are similarities between complaints lodged by women under homosexuality provisions and complaints lodged under other grounds, there are, at the same time, some significant differences. Such analogies and distinctions allow us to generate the kinds of questions that are important to ask of anti-discrimination law.
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URL: http://www.austlii.edu.au/au/journals/SydLawRw/1999/21.html