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Sexual harassment losing sight of sex discrimination.

[In this article, the author argues that the separation of sexual harassment from sex discrimination within legal and popular discourses deflects attention from systemic discrimination. The article examines a range of conduct to support the view that the closer to heterosex the harassing conduct is, the more likely it is to be accepted as sexual harassment. This corporealised focus not only individualises the conduct and detracts from the idea of women as rational knowers in authoritative positions, it also legitimises other forms of harassing conduct in the workplace. The unremitting focus on the sexual in sexual harassment therefore serves a convenient political and ideological purpose within a neo-liberal climate that privileges employer prerogative over workers' rights.]

I INTRODUCTION: EMBODIMENT AT WORK

Legal proscriptions against sexual harassment in the workplace, accompanied by avenues of redress, have existed in Australia for approximately two decades. The legal and popular discourses around sexual harassment have caused women to think about the way the phenomenon detracts from their personhood. They not only have the right to say `no' to a boss or a colleague, but to complain formally, either in-house or to a government agency, if they are sexually harassed. The evidence suggests that corporations are paying much more attention to internal grievance mechanisms than was once the case. (1)

While the recognition of sexual harassment as a legal wrong is an important step in securing human rights for women and non-dominant men, my support for the action is by no means unequivocal. I suggest that the disproportionate attention paid to the sexual in sexual harassment, as illustrated by the high profile media cases of the 1990s, (2) has deflected attention away from the sex-based discrimination that informs it. (3) The erection of a line of demarcation between sexual harassment and sex discrimination has been legitimated in Australia through legislation, despite the fact that the proscriptions against harassing and discriminatory conduct are contained in the same legislative instruments. (4) The construction of women workers as primarily sexed can have the effect of affirming the misogynistic subtext of the social script that the feminine is a dangerous and disorderly force within a sphere of rationality. It allows women to continue to be constituted as `Others' to `Benchmark Men'--that is, those who are Anglo-Celtic, heterosexual and able-bodied, and who are the normative inhabitants of the world of paid work. (5) The corporealisation of women in positions where they are expected to display reason is a very effective mechanism for impugning the authority of the feminine. Such practices help to explain the phenomenon of the glass ceiling that operates to exclude women from authoritative positions. (6)

Typically, men are the respondents in sexual harassment complaints and women are the targets. This accentuates a heterosexed paradigm with its connotations of sexual desire which lies at the basis of popular understandings of sexual harassment. However, in accordance with the glass ceiling theory, harassment is frequently perpetrated against women, irrespective of their sexual orientation, because they are not wanted in certain sectors of the workplace. This harassment may be more appropriately characterised as discrimination at work; it has nothing to do with desire. (7) Similarly, non-dominant men may be the targets of harassment at work because they do not fit into prevailing masculinist cultures. While this phenomenon is familiar in Australia, the essentialised understanding of sexual harassment has precluded the lodgment of complaints under this head to date. (8)

This heterosexed understanding of sexual harassment also needs to be placed in its broader sociopolitical context. Over the last decade or so, we have witnessed a swing away from the ideal of justice for women, as well as for Aboriginal people and classes of Others generally, to a focus on the individual. Rather than looking to the political domain or civil society for the realisation of the common good, emphasis is placed on the market. Neo-liberalism is not concerned that gross inequalities emerge as a result. Indeed, neo-liberal governments themselves promote a pro-market philosophy through policies such as deregulation. In the workplace, enterprise bargaining has been a very effective tool for weakening unionism and restoring employer prerogative. (9) Workplaces have generally become much less secure as conditions of work have been eroded at the expense of profit-making. Short-term contracts and casualisation underscore the culture of uncertainty that characterises the contemporary workplace. (10) Within this environment, workers quickly learn to be docile, since those who complain about workplace conditions may find themselves dispensable. Those subjected to discrimination face a dilemma: complain and risk losing your job, or keep quiet and retain it. However, by keeping quiet one may become complicit in the maintenance of sexual regimes in the workplace.

The privileging of the sexual in sexual harassment means that the focus is on the aberrant behaviour of individuals rather than the structural and systemic manifestations of discrimination. It must be acknowledged, however, that the latter remains perennially elusive. How do we tell the difference between `managing' and `harassing' when workers have to be constantly cajoled into working harder and being more productive in order to increase profit margins? The growing emphasis on employer prerogative, or managerialism, and the correlative de-emphasis on employee rights in an insecure environment mean that it has become more difficult for targets of harassment to make out complaints. I suggest that the corporatised workplace operates to legitimise the sex-based harassment of women and non-dominant workers, many incarnations of which are not tractable to remediation under anti-discrimination law.

Sexual harassment was not initially included in anti-discrimination legislation in Australia, but when it was included the proscription was accepted more readily than in the US. The US still relies primarily on a general proscription of sex discrimination, (11) which means that sexual harassment is a judicial rather than a legislative creation. In the early US case law, the epistemological stumbling block was that sexual harassment was deemed to be neither employment-related nor sex-based. (12) I have suggested elsewhere that Australian legislatures adopted a more pragmatic approach because it was accepted at the outset that sexual harassment impacted adversely upon productivity in the workplace. (13) Despite the proscription, articulating a complaint and obtaining a remedy is always fraught, particularly in a context where employer prerogative endows managers with considerable discretion. Furthermore, it is a flaw of the prevailing individual complaint-based model of anti-discrimination legislation that the individual act of sex discrimination is separated from sexism, just as racial discrimination is separated from racism, homosexual discrimination from homophobia, and so on. (14) While the class-wide factor is recognised in the lodgment of complaints, the probative burden, which includes connecting the impugned conduct with an identifiable respondent, is the responsibility of the individual complainant. (15) The effect is to relegate the systemic factors to the background. This dilemma confronts all discrimination complainants. The sexual activity within sexual harassment complaints is often so overt that it takes centre-stage and overwhelms the contextual factors. I suggest, therefore, that the favoured reading of sexual harassment serves a significant ideological and political role in safeguarding the conventional gendering of workplaces.

In Part II, I turn to a consideration of what might be imagined as a continuum of sexual harassment that bedevils mainly women workers, particularly within masculinist enclaves. I do not wish to suggest that the continuum is rigid or unchanging but that there is a discernible pattern, underpinned by the essentialised understanding of sexual harassment that prevails in legal and popular culture. I hope that this analysis will generate discussion around the nature and effect of the current conceptualisation of sexual harassment, as this issue has been largely quiescent in recent years as workers grapple with the depredations wreaked by neo-liberalism.

I start with overtly sexual conduct at one end of the spectrum and argue that the more the harassing conduct is like heterosexed activity (conceptualised in terms of an active male harasser and a passive female `victim') the more likely it is to be accepted as sexual harassment. The less sexualised, albeit sexed, the harassing conduct is, the more likely it is to be normalised within the workplace and the more difficult it is for the complainant to obtain a remedy.

I acknowledge that the language I am working with--especially sex and sexuality--is very slippery, as these terms merge into one another and take their colouration from the context in which they operate. After all, we are all sexed, as well as sexual, beings. While `sex' may refer to a biological category, it is also a socially constructed term that incorporates gendered understandings of masculinity and femininity. (16) This broad view of sex has selectively been incorporated into sex discrimination jurisprudence, although the linguistic leeway accommodates a biological reductionism when it suits. (17) The legislation itself does not define `sex', thereby investing tribunals and courts with considerable power to tell us what it means. The Sex Discrimination Act 1984 (Cth) (`SDA') does no more than refer to the `opposite sex', (18) thereby suggesting a biological interpretation. `Sexual', like sex, can refer both to biological and political classifications of identity (`the identity cluster'), as well as to the desires, appetites and practices associated with sexual expression (`the carnal practices cluster'). `Sexual' is also undefined in the sexual harassment provisions of the SDA, although the references to `an unwelcome sexual advance', a `request for sexual favours' and `conduct of a sexual nature' (19) clearly signify sexualised conduct. Given the political and ideological quicksand surrounding the semiotics of sex, I recognise that my task is a daunting one. However, in taking my cue from the legislative formulation and locating `sex' within the identity cluster and `sexual' within the carnal practices cluster, which I also critique, I trust that my argument is clear.

II SEXUAL HARASSMENT AS HETEROSEX

The socio-legal recognition of sexual harassment is of very recent origin, although the phenomenon itself has an ancient lineage. The term `sexual harassment' emerged in the mid-1970s in the US (20) and quickly entered feminist and equality of employment opportunity (`EEO') discourses throughout the Western world. (21) The understanding of sexual harassment as conduct that is overwhelmingly perpetrated by men against women is reflective of the heterosexed nature of the typical workplace. (22) That is, managerial positions are more likely to be masculinised, while those that are managed are feminised. The principle of sex neutrality favoured by federal and State legislation (23) also permits the lodgment of complaints by women against women, (24) and by men against either men or women, (25) but the same sexualised understanding of sexual harassment infuses the conduct in these alternative relations.

The interpretative gloss on the legislative proscription of sexual harassment encompasses a broad range of conduct, including acts of masturbation and exposure, (26) the recounting of sexual exploits, (27) the interrogation of the complainants concerning their sexual practices, (28) and remarks of a sexual nature. (29) As these sexualised instances of harassment invariably involve male actors and female targets, mirroring heterosex, it is perhaps not surprising that the paradigm of sexually harassing conduct involves importuning another for sexual favours. (30) At its most extreme, this may include criminally actionable sexual assault, although most workplace harassment falls short of criminality. However, there are manifold heterosexed variations apart from soliciting favours, such as the case of the employer who stole sexually explicit photographs of the complainant from her home, enlarged them and carried them around in his briefcase, (31) or the case involving a middle-aged man who stood in front of the desk of a young woman in her first job and stared at her all day. (32) While sexual desire may underpin harassment of this kind, it may also be animated by a desire to intimidate. The focus of the Australian legislation, however, is directed towards the effect on the complainant; intent is of no legal relevance in itself. (33)

Sexual harassment as heterosex is rife against women in subordinate positions where a male boss exercises `power over' them. A common scenario is that of a small business enterprise, such as a shop or restaurant, in which a young woman, often in her first job, is employed as a shop assistant, waiter, secretary or cleaner. (34) The manager or sole proprietor is typically a middle-aged man who assumes that an unsophisticated young woman is fair game. He regards her personhood and autonomy as inferior to his and, in hiring her labour, he seems to assume that he can assert a right over her body. When she exercises her free will and rejects him, she may be victimised and downgraded. (35) Of course, respondents in such cases know that they do not have possessory rights in the person of the employee and, if challenged, will endeavour to rationalise the target's departure in terms of incompetence. (36) Nevertheless, the respondents in such cases are frequently serial harassers. (37)

With O'Callaghan v Loder, (38) New South Wales became the first Australian jurisdiction to accept that sexual harassment was a form of sex discrimination. (39) The New South Wales Equal Opportunity Tribunal (`NSWEOT') held that a person is sexually harassed if he or she is subjected to unsolicited and unwelcome conduct by a person who stands in a position of power over him or her. (40) In this case the heterosexed nature of organisational power, or what Catharine MacKinnon has referred to aphoristically as `dominance eroticised', (41) was clearly in evidence. The male respondent, the Commissioner of Main Roads, was the most senior person in the organisation, while the female complainant, a lift driver, was one of the lowliest. The Commissioner was in the habit of inviting the complainant into his office with the explicit intention of soliciting sexual favours. Despite Mathews J's initial courage in acknowledging the discriminatory harm of sexual harassment, her Honour faltered in applying her test to the crucial element of power. The harassing conduct was found not to amount to unlawful sex discrimination because the complainant had failed to make known to the respondent that his attentions were unwelcome. (42) The implications of `power over' were thereby undermined. Was the complainant to slap the Commissioner's face and tell him to `get lost'? (43) She knew perfectly well that any intimation of rejection could have resulted in job-related repercussions, as she indicated at the hearing. (44) Despite the unsuccessful outcome for the complainant, this was a trailblazing decision that laid the groundwork for new ways of thinking about gendered harms in the workplace. (45) Indeed, it led to the express proscription of sexual harassment within anti-discrimination legislation. (46)

Anti-discrimination legislation does not proscribe all sexual behaviour in the workplace, much of which may be pleasurable. (47) It is the unwanted character of the behaviour that transmutes ostensibly neutral behaviour into unlawful behaviour in the eyes of the law. The impact on the targeted person has to be evaluated in the light of community norms, which is then-filtered through the fictional standard of the reasonable person. This well-known albeit contested standard purports to bring a quasi-objective test to bear on the subjective reception of the conduct by the complainant--supposedly to foreclose the concern that employers might be held responsible for injury to hypersensitive employees. (48) With the exception of Western Australia, all Australian anti-discrimination legislation now includes a provision requiring the behaviour to be such that `a reasonable person ... would have anticipated that the person harassed would be offended, humiliated or intimidated.' (49) As Jenny Morgan points out, however, the moralistic overtones of this formulation, particularly the word `offended', detract from the inequality that sexual harassment creates in the workplace. (50) I concur with this assertion but, as foreshadowed, I wish to go further. I suggest that it is not only the moralistic and trivialising formulation that is the problem, but the emphasis on sexual in sexual harassment. This emphasis essentially camouflages the systemic discrimination that fosters the harassment. Hence, only the most overtly heterosexed and individualised examples of sexual harassment tend to be comprehensible within the terms of the legislation:
   This sexual desire--dominance paradigm governs our understanding of
   harassment. Its influence is reflected in the very fact that the category
   is referred to as `sexual' harassment rather than, for example,
   `gender-based' or `sex-based' harassment. The most publicized harassment
   cases have accentuated this understanding. (51)


Harassment that is sexed, rather than sexualised, is theoretically covered by the general proscription against sex discrimination--less favourable treatment on the ground of sex--but the expressio unius principle of legal interpretation (52) renders this more difficult to bring within the legislation, as I will demonstrate.

Thus, while the inclusion of a proscription of sexual harassment was thought to be a significant development by feminists and progressive lawyers, (53) as indeed it was in many ways, insufficient cognisance has been accorded to the `offended, humiliated or intimidated' (54) formulation. In fact, the original wording of the SDA, which focused on unwelcome conduct that would disadvantage the complainant, took greater account of the discriminatory effect. (55) The parliamentary debates relating to the amendment stress the move away from the need to prove disadvantage as a positive step, as disadvantage is not always relevant, but the substitution of the new wording, though noted, was not given further explication. (56) I am not suggesting that the previous wording was unproblematic as it also focused on sexual conduct, as distinct from sex discrimination, but the `offended, humiliated or intimidated' requirement undermines the significance of the discriminatory effect of that conduct. Cordoning off sexual harassment and treating it as the aberrant conduct of individuals also encourages superficial and trivialising views, such as those equating sexual harassment with a breach of manners or sexual etiquette. (57)

III SEXUALLY PERMEATED WORKPLACES

When women endeavour to move into what is predominantly thought of as `men's work' for the first time, the character of the harassment frequently shifts from the actions of a single harasser to conduct of several co-workers or the members of an entire work unit. Their aim seems to be to create a hostile work environment in the hope that the interlopers will leave. (58) Harassment of this nature seems to be motivated by a fear that men's masculinity will be impugned if women are able to do the same job as well as them. The antipathy shown towards women in male-dominated occupations has undoubtedly contributed to the retention of a very high degree of segregation within the Australian workforce, reported in 1992 to be one of the highest in the industrialised world. (59)

As we move away from individualised sexual overtures and sexual desire, the conduct tends to be less direct, albeit sexualised, as it consists of imagery that mimics heterosex with masculine actors and objectified women. Such conduct commonly includes pornographic displays, obscene language and crude sexist jokes. (60) The display of pornographic images has served to mark certain workplaces as masculinised spaces, a practice that has been conventionally tolerated by management. Blue-collar workplaces, such as building sites and mines, are paradigmatic examples of workplaces where the entry of women has generated a high degree of resentment. (61) The often gross nature of the harassment in this category enables the complainant to succeed in making out a complaint successfully, albeit that her career may well be ruined by the time she lodges a complaint.

In Hopper v Mt Isa Mines Ltd, (62) the complainant was one of the first women to be selected as an apprentice diesel fitter. However, during her employment she was subjected to persistent sexual harassment, including having gross comments made about her body and being surrounded by pornographic material. The sexualisation of the complainant was effective in constructing her as a figure of abjection, (63) rather than a competent worker. Her apprenticeship was also deleteriously affected, as she was assigned inappropriate and menial tasks, such as washing bolts. She broke out in a rash, suffered depression and had to abandon her apprenticeship after two years. (64)

Harassment that involves inappropriate assignments is not sexual according to the legislative formulation, but sexed, because it constitutes less favourable treatment than would have been accorded a comparable male apprentice. In Hopper, the discriminatory activity was not disaggregated from the more overtly sexualised activity, so it did not prove to be a problem. It is when the harassment occurs in the absence of sexualised conduct that it is more difficult for the complainant to prove that it was sex-based. In any case, the sexualised conduct itself may be probatively problematic because a woman in a non-traditional workplace may not necessarily be `offended, humiliated or intimidated' by the harassing acts. Quinn makes the point in the discussion of one of her interviews, conducted in the course of a North American study: `In her job in construction, Judy was not offended per se by the male-employees' crude remarks or the pornography in the construction trailer; in contrast, she found it childish and unprofessional.' (65) Because she was not `offended, humiliated or intimidated', Judy would also encounter difficulty in making out her complaint successfully under the Australian sexual harassment provisions. This category of complaints underscores Morgan's point as to the inappropriateness of the moralistic formulation at the expense of a focus on inequality. (66)

The sexual harassment of women who encroach upon and disturb masculinist workplaces is by no means confined to blue-collar work. The police force and the armed services are also well-known examples, despite conscious efforts at official levels to change the forces' image and clamp down on `bastardisation' practices. (67) However, the existence of a non-discrimination policy does not automatically translate into civility and acceptance throughout the organisation. In McKenna v Victoria, (68) the complainant was a police officer who was subjected to unwelcome sexual advances, excessive criticism and derogatory remarks about her private life. After two years of abuse she complained, at first within the force and then externally, but was victimised as a result, which culminated in successive breakdowns. In the eyes of the old guard police officers, reporting the harassment to an outside body was a wrong that far outweighed the wrongful conduct itself, for it violated the cherished code that one should never `dob'. (69)

Williams v Robinson, (70) in which the complainant was a member of the Royal Australian Air Force (`RAAF'), evinces somewhat similar facts. Williams had been subjected to a number of instances of sexual assault. The failure of superior officers to deal appropriately with the initial instances influenced the complainant's response to subsequent episodes. Life in the RAAF became intolerable: she had to have psychotherapy and felt that she had no option but to leave. As with the closed culture of the police force, complaining about one's treatment to an outside body carried the risk of being branded a `dobber'. (71)

This `whistleblower' mentality provides a powerful disincentive for a targeted person to complain because they know that they are unlikely ever to win more than a Pyrrhic victory against a powerful institution. That is, complainants might have the satisfaction of eventually being told that they are in the right, but their careers will have been reduced to tatters in the process. While `dobbing' may be the language of both the police force and the RAAF, (72) the same sentiment often prevails in private corporate cultures, as my research on the legal profession has shown. (73)

Men who resist the dominant norms of the workplace may also be the targets of sexualised harassment by other men. These non-dominant men are not necessarily gay. In Daniels v Hunter Water Board, (74) the complainant, an electrician, was subjected to a campaign of harassment because his co-workers thought that he was gay. In addition to taking up jazz ballet, drama classes and modelling, he adopted a `trendy' haircut and wore an earring. He was ridiculed, and taunted with epithets such as `Weirdo', `Poofter' and `Gay Boy'. He was also spat upon and physically assaulted. Within the masculinist culture of the workplace, the co-workers made it known that the complainant was `not one of the boys'. (75)

In pursuing a remedy, the complainant was able to rely successfully upon a provision in the NSW Act proscribing discrimination on the ground of `perceived homosexuality'. (76) In US jurisdictions where proscriptions on the grounds of sexual preference are not available, male complainants have sought to rely on sex discrimination provisions. The Supreme Court has recently upheld a same-sex complaint by a heterosexual complainant whose harassers were also heterosexual men. (77) Extrapolating from this case to Daniels, the argument would be: but for his sex, the complainant would not have been harassed. In other words, had Daniels been a woman who took up jazz ballet, drama and modelling, his conduct would not have given rise to hostile environment sexual harassment in the workplace. The argument is a provocative one, as it confounds the biological binarism of sex that underpins anti-discrimination law, as discussed in Part I.

Cases such as Daniels underscore the animosity towards the feminine in masculinist workplace cultures, no less than in Hopper, McKenna and Williams. The aggressive conduct often found in such cases clearly has more to do with hate than desire. They illustrate how masculinist cultures of homosociality and heterosexism are effectively sustained. (78)

IV THE GENDER OF AUTHORITY

In the face of the imperative to modernise corporate workplaces by appointing women to authoritative positions, there has been a strong rearguard action designed to maintain the hierarchical status quo. The metaphor of the glass ceiling captures the way that well-qualified and competent women often reach a point in organisations beyond which they are not promoted. Whether one looks at private corporations, the professions, universities or public corporations, the same gendered pyramidal structure is clearly discernible. Masculinist cultures of authority may implicitly condone the scapegohting and harassment of individual women who have been promoted to the higher echelons as a strategy for impugning their ability. The vestiges of fraternity, still prominent in blue-collar employment, the police force and the armed services, (79) are also discernible in authoritative enclaves elsewhere. The difference is that the harassing conduct is usually more insidious, in regard to both its character and its effects, so that it is difficult to make out a complaint. In other words, it is less overtly heterosexed.

This category of behaviour includes a panoply of harassing acts, often of a petty and repetitive kind. It includes verbal put-downs, patronising or abusive remarks, and excessive criticism of work performed. (80) It may also include marginalising conduct, such as failing to consult the complainant on matters over which she has responsibility, (81) or making it difficult for her to access resources and obtain the necessary approvals to carry out her job properly. (82) Any failures then appear to be her fault. As Schultz points out, `characterizing women as incompetent ... is a central component of the harassment'. (83) I suggest that this behaviour is pervasive within the pyramidal apex of the typical organisation, long preserved as a masculinist domain of power and authority.

The problem is that while harassing conduct is undoubtedly unwelcome, it may not constitute `conduct of a sexual nature' for the purposes of the sexual harassment provisions of the SDA. (84) In the absence of a specifically sexual dimension, a complainant would have to rely on general sex discrimination provisions, such as denial of access to a benefit in employment (85) or subjection `to any other detriment'. (86) The complainant then has the burden of proving that the discrimination occurred by virtue of sex (or marital status, pregnancy or other ground under the SDA). While the burden of proof is onerous in discrimination complaints generally, harassment of this kind is even less tractable to remediation because it represents a manifestation of systemic discrimination that is ever-present at a subliminal level, constituting and reconstituting authority at work in masculinist terms. The complainant has the burden of proving that the unwelcome conduct was directed at her by virtue of her sex, rather than, say, because the harasser just happened to be an inept manager or an unpleasant person. Repeated micro-inequities also lack the dramatic impact of gross heterosexed behaviour of the kind that attracts media attention. The tendency of tribunals and courts to disaggregate and dissect a string of incidents separately can have the effect of detracting from the overall discriminatory effect of a complaint. A single sexualised heterosexed act, with its blatant lasciviousness and lust, invariably trumps a succession of seemingly trivial put-downs, even though the latter may reveal more about structural discrimination on the ground of sex than the former.

This manifestation of harassment was recognised in NSW within a general proscription against sex discrimination, where the term `sex-based harassment' was used to distinguish it from the sexual variety. In Hill v Water Resources Commission, (87) the complainant had been appointed as the first clerical graded officer in her department where her co-workers were predominantly men. They said that she would not fit in and ensured that she did not. (88) There were no sexual overtures as such, although some sexually explicit material was displayed on noticeboards. For the most part, the harassment comprised an endless succession of petty acts, including nuisance telephone calls, threatening letters, and heavy-handed `jokes', such as pretending to have killed the complainant's goldfish. The NSWEOT held that the cumulative effect of the harassment contributed to the creation of a hostile working environment. (89) The recognition that the petty vindictiveness and harassment, to which women pioneers in male-dominated workplaces are all too often subjected, constituted sex discrimination was an important step forward.

The second significant development in Hill related to the fact that the perpetrators of the harassment were not men in structural positions of `power over' the complainant, as per the test articulated in O'Callaghan the year before, but were her co-workers. The senior men to whom Ms Hill complained nevertheless condoned the harassment by failing to take action to stop it, thereby underscoring the fraternal bonds between the men in the organisation, regardless of their position in the hierarchy. Their inaction sufficed to make the statutory authority employer vicariously liable for the conduct of its employees. (90) When the supervisors finally did act, their response was to transfer and demote the complainant, rather than any of the perpetrators. (91)

Now that sexual harassment has been hived off to a separate part within the NSW Act, (92) as is the case with most Australian sex discrimination legislation, it is doubtful whether Ms Hill would succeed if she were to lodge a complaint of sexual harassment under the current provisions. The decision established that a pattern of harassment arising from the sex of the complainant violates the proscription against sex discrimination; the conduct does not have to be sexual. (93) In the case of women entering predominantly male areas of employment, the language of being `offended, humiliated or intimidated' falls short of accurately capturing the discriminatory effect of the conduct to which Ms Hill was subjected. She would have to rely on the general prohibition of sex discrimination as `less favourable treatment'. This is not only more difficult from a probative perspective, as the harassing conduct becomes entwined with the historic exclusion of women from positions of authority generally (which cannot be sheeted home to a particular respondent); it also becomes enmeshed with bona fide acts of management.

The masculinist nature of authority at the senior level of organisations, together with the countervailing antipathy towards the feminine, is clearly illustrated by Dunn-Dyer v ANZ Banking Group Ltd. (94) The complainant was appointed to a senior position in the banking industry, a domain where there are still relatively few senior women to be found. (95) Ms Dunn-Dyer complained of both sexual harassment and sex discrimination, thereby accepting the binarism. The sexual harassment claim did not succeed, although the dealing room atmosphere was a masculinist and bawdy one which included posters of nude women and soft porn magazines. At one `Kris Kringle' Christmas Eve function, Ms Dunn-Dyer received a plastic jumping penis, although she herself had once donated a girl representing male genitalia. The Inquiry Commissioner was of the view that the onus of proof had not been satisfied so as to distinguish between `consensual and harmless bawdiness' and a hostile workplace. (96) The subtext here would seem to be that, in order to succeed on the sexual harassment count, Ms Dunn-Dyer was expected to step into the subject position of woman employee as `fragile flower' and to demonstrate how she was personally offended, rather than demonstrate how such conduct created an environment that discriminated against women.

In the separate sex discrimination claim, the evidence revealed that the complainant had been subjected to a constant barrage of disparaging remarks, including being referred to as `mother hen', and her department as `the kinder garten nursery' and the `mothers' club'. (97) The evidence of one senior manager denied that the term `mother hen' was derogatory: `I didn't introduce you as the mother hen. I introduced you, then described your role as a mother hen.' (98) The Commission disagreed with the witness, finding that the remarks were not only derogatory but they had influenced the assessment of the managerial qualities of the complainant, including the amalgamation of her department with that of another. (99) The decision to restructure and dispense with her position was found to be a calculated decision to get rid of the complainant. (100)

Nevertheless, the disparagement and construction of the complainant as someone unfit to hold a managerial position was held inadequate to establish why she was not appointed to the position of State Treasurer with the Bank. The long experience and seniority of the successful male appointee was accepted as foreclosing a finding of sex discrimination on this point. (101) This aspect of the complaint underscores the difficulty of meeting the burden of proof in a context where the bona fide but elusive concept of merit is all-important. (102) The reasons for the restructuring and the redundancy were more obviously pretextual. They were extreme acts for which no credible rationale could be adduced.

The disaggregation of the sexual harassment and the sex discrimination in this case reveals the artificiality of the approach. Clearly, the dealing room atmosphere and the disparagement of Ms Dunn-Dyer were related. A more holistic approach would have shown how the complainant's competence was systematically undermined by the various kinds of harassment--including sexualised displays and gender disparagement--all of which contributed to the creation of a hostile working environment, which would have been damaging for any woman in an authoritative position. Dunn-Dyer illustrates my point that disaggregation has the effect of trivialising sexual harassment claims by disconnecting them from the discriminatory factors that animate them.

V WORK RAGE

My next stop on the harassment continuum is bullying, which is reported to have increased as a corollary of increased managerialism. (103) Harassment is bullying by another name but, unless the complainant can establish that the bullying behaviour occurred on the ground of sex (or other proscribed ground) as discussed above, the complainant has no recourse to a remedy under anti-discrimination legislation. (104) Petty acts of harassment may be successfully subsumed within the rubric of sex discrimination in the context of an attempt to expel the complainant from a masculinist workplace, as in Hill, but harassment and management are not otherwise easily disentangled. As Finn J points out, `it is not workplace harassment for managers to manage.' (105) But where does management end and harassment begin? The neo-liberal presumption in favour of employer prerogative has served to heighten the burden of proof for complainants. Unless a complainant can support an allegation of sex discrimination with persuasive evidence, such as being the first and only woman in a particular position (as with Hill or Dunn-Dyer), a presumption in favour of management prevails. Even if the harassment is conceptualised as the aberrant act of an inept manager, it is nonetheless deemed to be `managing'.

In Malone v Pike, (106) the main allegation of sexual harassment was that the respondent poked the complainant in the chest and told her to do what she was told. The Human Rights and Equal Opportunity Commission (`HREOC'), while conceding that such behaviour was `unwelcome, and reasonably likely to offend', held that it was not conduct of a sexual nature for the purposes of the SDA. (107) In Hosemans v Crea's Glenara Motel Pty Ltd, (108) HREOC held that calling the complainant a `stupid bitch' and telling her that she had a `fat arse' was personal abuse rather than sexual harassment. (109) In contrast, the conduct in Gray v Victoria, (110) where the school principal shook a packet of Ratsak in the complainant's face and said that `he would "get a rat"', was accepted as an element of victimisation waged against the complainant because she lodged a complaint alleging both sexual harassment and sex discrimination. VCAT was of the view that a male teacher would not have been intimidated in the same manner. (111)

One could come to a similar conclusion about being poked in the chest, especially as a woman's chest is dangerously close to her breasts, an undeniably erogenous zone. Furthermore, the `stupid bitch' and `fat arse' remarks also carry with them sexual, overtones. Their rejection as sexual harassment by the Inquiry Commissioner reveals how sexual abuse has come to be normalised within everyday speech. It also underscores my point that sexual harassment is more likely to be legally cognisable if it comprises heterosexed conduct. Verbal abuse may be found to constitute sexual harassment, provided it can be shown to have given rise to the requisite humiliation, loss of dignity or injury to feelings. However, it is not sexed or sex-based abuse, but sexual abuse that is necessary. Thus, it is the element of `recurrent sexual innuendo' associated with the abuse that locates it within the terms of the legislative proscription. (112) Generally speaking, to succeed, the abuse needs to be combined with other instances of discrimination arising from specified grounds, as in Hopper.

The point is illustrated by Djokic v Sinclair, (113) in which the complainant's superior and co-workers at a meatworks regularly referred to her as a `stupid wog bitch' and a `fucking wog bitch'. In this case, the racist element was intermingled with incidents of sexual harassment and sex discrimination. (114) The complainant succeeded in respect of all grounds, but there was some question about her ability to satisfy the burden of proof had the various incidents been disaggregated. (115) HREOC acknowledged that the threatening words constituted a serious abuse of power, which could be characterised as sexual harassment, (116) but it questioned whether flicking the complainant's bra strap and touching the top of her trousers constituted deliberate touching of a sexual nature. (117) While HREOC accepted that the sustained hostility towards Ms Djokic amounted to sexual harassment in its broad sense, it can be seen that establishing the sexual in sexual harassment is not straightforward, even when it involves touching, unless it is unequivocally (hetero)sexed.

In the absence of other manifestations of discrimination, sexualised verbal harassment--a common form of bullying--seems to fall into the space that has been created by the artificial line of demarcation between sexual harassment and sex discrimination. Abusive, infantilising and demeaning language that is directed towards women is woven into the social script. A study of women lawyers in the US in the early 1990s revealed that almost all women under 35 working in the private sector were vulnerable to gender disparagement, (118) although being an older woman in a private law firm afforded little protection either. (119) Such conduct does not clearly meet the present legislative test for sexual harassment, and it is unlikely to satisfy the test for sex discrimination either. It is all too easy to aver that verbal taunts, physical assaults and other manifestations of hatred and dislike are perpetrated by rude, insensitive and mean-spirited bullies, rather than sex discriminators. However, the application of a simple `but for' test rebuts a finding of sex neutrality: but for the fact that the target was a woman, one might postulate that she would not have been subjected to the demeaning conduct. It is unlikely that Benchmark Man, our idealised comparator and paragon of non-discrimination, would be called `a stupid bitch', for example. There is no comparable phrase in common usage that encapsulates quite the same degree of sexualised contempt for men.

VI PROBATIVE AND PSYCHIC BURDENS

Proof in any complaint involving a corporate respondent, private or public, is always difficult for an individual complainant. (120) Only two or three per cent of complaints proceed to formal hearing, representing the most dedicated of complainants and the most obdurate of respondents. Conciliation remains the primary mode of dispute resolution, (121) but the small percentage of complaints that proceed to a hearing receive a disproportionate amount of attention because they are held in public and result in formal decisions that are reported. While a fair proportion of finalised complaints are conciliated successfully, a high proportion are withdrawn or lapse. (122) The corporate respondents who hold out are determined to win at all costs, because a complaint to an outside body represents a threat to both managerial authority and fraternal integrity; hence the strong disapprobation of `dobbing'. (123)

As a public lesson to any other employee thinking of complaining, respondents often set out to destroy the complainant's credibility by arguing that she has improperly eroticised the workplace, displayed incompetence or otherwise transgressed professional norms. They are prepared to devote substantial resources towards that end, which few complainants can match--particularly if they are unemployed at the time of a hearing, as is usually the case. (124) The case of Dunn-Dyer, discussed above, is exemplary. Ms Dunn-Dyer lodged her complaint in 1992, but a decision was not handed down until 1997. The case involved weeks of hearing, spanning a period of 14 months. The transcript amounted to more than 4000 pages. (125) Although the complainant `won' at the inquiry level, the respondent bank chose not to appeal, which would have compounded the cost, delay and trauma for the complainant. Few women have the fortitude, tenacity or resources to withstand such a gruelling experience if conciliation fails. There is not only a gross financial inequality between a large corporation and an unemployed individual (often lacking union support), (126) but the corporate employer also has a monopoly over the evidence and access to employee witnesses who may be fearful of being scapegoated and of placing their jobs in jeopardy. There is no recompense for the additional trauma incurred by the complainant who withstands the years it may take to reach a settlement. Susan Dunn-Dyer received a mere A$ 10 000 for emotional harm calculated to the time of lodgment of her complaint. (127) The subsequent years of stress associated with unsuccessful attempts at conciliation and formal hearings are not compensable. Although Ms Dunn-Dyer received A$125 000 for economic loss, which is higher than damages typically awarded, no allowance was made for her legal costs, a sum that may well have exceeded the damages award. She had lost her job five years previously, and the public nature of the hearing ensured that it was unlikely she would ever be employed by a bank in Australia again. Misogynistic images of `the troublemaker' and `the complaining woman' are difficult to dislodge for professional and high-status workers who pursue justice through formal avenues. They have directly confronted the stereotypical images of deference and docility still favoured for women at work.

In addition, there is always a psychic difficulty faced by the targeted person in complaining about having been harassed by either a boss or co-workers. To complain formally means that one has to step into the shoes of `the victim', which can be just as humiliating and disempowering as enduring the harassment itself, sometimes more so, particularly for senior women: `To conform to the image of the proper victim, women must comport themselves as sexually pure, even passive, beings who have been violated by their coworkers' sexual predation.' (128) As with any civil action, harm must be proven by the complainant. If she has survived seemingly intact as a result of self-help measures, which may include resigning and securing another position, she can expect minimal damages. This problem inheres within the compensatory model of civil remediation generally and was underscored by the need to prove disadvantage in the earlier legislative provisions. (129) The fact that costs are not awarded in some anti-discrimination jurisdictions may mean that the rational target will decide to cut her losses and not pursue a legal remedy at all, unless altruistically committed to calling the respondent to account. Having to assume the trappings of the `victim' is one of the paradoxes of a statutory scheme geared towards the restitutio in integrum principle. (130) Because sexual harassment, at least of the heterosexed variety, is now generally accepted as unlawful, it may be easier for the targets of such conduct to satisfy the probative burden than for those whose harassment is less overtly sexualised. The latter may agonise over whether to complain formally or not.

The experience of a woman lawyer whom I interviewed illustrates the point very well. (131) She was at lunch with a client and the senior (male) partner of her law firm when she said something that the partner did not like. He pretended to drop his napkin, bent down to pick it up and, in the process, slapped the woman on the thigh. She was outraged, but felt that she could do or say nothing even though, technically, an assault had occurred. To whom could she speak? What words could she use? The indignity would only have been magnified had she articulated her feelings. Imagine the snide looks and titters if she were to complain to a person in authority. The effect of giving voice to the unwelcome behaviour could serve only to strengthen male solidarity, thereby confirming the outsider status of women in the professional legal workplace. The corporeal act remained ineffable because it demeaned the woman as an authoritative knower whether she complained or not. In formal terms, the conduct was also problematic. It was clearly sexed and discriminatory, in that it is doubtful whether our hypothetical Benchmark Man would ever be subjected to such treatment, but it was not clearly sexualised in terms of the legislative prescript. Thus, even though I have argued that it is easier to pursue a complaint of sexual harassment than sex-based harassment, there are powerful psychic factors that inhibit the lodging of workplace discrimination complaints of any kind, either in-house or externally.

Complainants may then choose to ignore the harassment or deal with it in some other way, such as by denial or with humour. (132) If the harasser perceives that the target has not responded as hoped, the target may feel that she has acquired a skerrick of discursive power. Nevertheless, her silence can be interpreted as a form of complicity for, although it may have individual effect in her relations with the harasser, it lacks broader social impact. This is the paradox of sexual harassment.

VII CONCLUSION

The separation of sexual harassment from sex discrimination and sex-based discrimination reinforces the view that what is defined as `sexual' is, like rape, based on a heterosexist male perspective. (133) That is, the conduct involves a male subject who is the actor and an objectified woman who is acted upon. Thus, the conduct of a man importuning sexual favours or exposing himself in the presence of a woman is Characterised as unproblematically sexual. However, as soon as we move away from the paradigm, we begin to encounter problems. Abuse, taunts, insults and other everyday micro-inequities of harassment that are sexed are trivialised and dismissed because they are deemed to be insufficiently sexual. Once characterised as non-discriminatory because of sex or another specified ground, they become entwined with the supposedly neutral conduct of managing. Over time, daily put-downs may exercise a more corrosive effect on the authority and sense of self of a targeted employee than a single unwanted sexual overture. The `stupid bitch' remark denigrates all women, but is the `reasonable person' likely to be `offended, humiliated or intimidated' by it when such remarks have become normalised within colloquial speech? As suggested, abusive epithets in common parlance are generally not regarded as sexual harassment, although words that suggest sexual intercourse and intimate body parts probably carry the requisite degree of sexualisation. The misogyny encapsulated by such language is a facet of systemic, or society-wide, discrimination that is not comprehensible within an individualised complaint-based regime. The propensity to adopt a `biologist' approach towards sexual harassment and sex discrimination facilitates the sloughing off of the social so as to appear normal and even natural. (134)

While it is a positive development that sexual harassment is now widely recognised as a compensable harm for individual women, it is a blunt instrument of remediation. The hegemony of the heterosexed paradigm has caused feminist, as well as legal and popular, discourses to lose sight of the ways that harassment at work is sexed, not just sexualised. Sexual harassment claims reify the liberal binarism that `the mind', which biologically `has no sex', (135) is masculine; bodies, which are both male and female, are marked as female and Other. While this gendered mind/sex binarism is under challenge by women at work everywhere, emphasising the sexual in sexual harassment simultaneously reproduces it. The normativity of the masculine body, especially when clothed in a grey suit, enables it to assume an aura of depersonalised authority within the workplace. A woman complaining about (heterosexed) sexual harassment to a grey-suited male boss, or to a grey-suited male tribunal member or judge in a hearing or courtroom invariably overflowing with grey-suited male lawyers, reifies that binarism. This is always the dilemma for complainants because there is a discursive power associated with naming that which has formerly been suppressed.

Sexual harassment has entered public discourse only because individual women have courageously spoken out. In the absence of challenge, all the hard work of the women's movement is quickly papered over. We see how dramatically this has occurred in less than a decade--how a neo-liberal social script has emerged that barely mentions women, other than as consumers and commodities. The stressful bullying cultures legitimated by neo-liberalism, in which workers are expected to work ever harder to increase profit margins, are not readily tractable to remediation through anti-discrimination avenues.

It is time that we moved beyond the idea that the harassment of working women should be conceptualised primarily in terms of corporeality. I am not naively suggesting that merely changing the wording of the legislation would effect an instantaneous transformation, as systemic sex discrimination is entrenched within the culture of the workplace. Lawyers' most powerful clients are corporations and the legal hermeneutic community will seek to define whatever words appear in legislation to their clients' advantage; there is little interest in the broader ramifications of social change.

Perhaps the environment of neo-liberalism has caused us all to be less vigilant in permitting a linguistic shift from discrimination to managerialism to occur, cloaking sex-based harassment in the workplace. An invigorated dialogue needs to take place to debate and resist these trends. Harassment not only demeans all women and non-dominant workers in respect of their professionalism and authority, it detracts from the idea that they are full citizens.

(1) See, eg, Christine Parker and Leon Wolff, `Sexual Harassment and the Corporation in Australia and Japan: The Potential for Corporate Governance of Human Rights' (2000) 28 Federal Law Review 509.

(2) Most notably, the Anita Hill case in the US and the Ormond College case in Australia. The former involved Justice Clarence Thomas of the District of Columbia Circuit Court of Appeals, nominee for the US Supreme Court: see Anita Hill and Emma Jordan (eds), Race, Gender and Power in America: The Legacy of the Hill-Thomas Hearings (1995). The Ormond College case involved two young women students and the College Master: see Jenna Mead (ed), Bodyjamming: Sexual Harassment, Feminism and Public Life (1997). See also Helen Garner, The First Stone: Some Questions about Sex and Power (1995); this provocative book added fuel to the fire in the Ormond College case. For an insightful critique of the literature, see lan Duncanson, `Sexual Harassment and the Politics of Culture: Incident(ally) at Ormond College' (1998) 10 Australian Feminist Law Journal 149.

(3) Cf Vicki Schultz, `Reconceptualizing Sexual Harassment' (1998) 107 Yale Law Journal 1683, 1687.

(4) See, eg, Sex Discrimination Act 1984 (Cth); Anti-Discrimination Act 1977 (NSW); Equal Opportunity Act 1995 (Vic); Anti-Discrimination Act 1991 (Qld); Equal Opportunity Act 1984 (SA); Anti-Discrimination Act 1998 (Tas); Equal Opportunity Act 1984 (WA); Discrimination Act 1991 (ACT); Anti-Discrimination Act 1992 (NT).

(5) See, eg, Margaret Thornton, `EEO in a Neo-Liberal Climate' (2001) 6 Journal of Interdisciplinary Gender Studies 77, 78.

(6) I have dealt with this thesis at greater length elsewhere, with particular regard to women and the legal profession: see Margaret Thornton, Dissonance and Distrust: Women in the Legal Profession (1996) 41-8, 216-67; Margaret Thornton, `"Liberty, Equality and ?": Endowing Fraternity with Voice' (1996) 18 Sydney Law Review 553; Margaret Thornton, `Authority and Corporeality: The Conundrum for Women in Law' (1998) 6 Feminist Legal Studies 147.

(7) Harassment has been a major concern for lesbians, at work and elsewhere. Chapman and Mason found in their study of discrimination and vilification complaints lodged on sexuality grounds that 46 per cent related to the area of employment: Anna Chapman and Gail Mason, `Women, Sexual Preference and Discrimination Law: A Case Study of the NSW Jurisdiction' (1999) 21 Sydney Law Review 525, 531.

(8) See, eg, Daniels v Hunter Water Board [1994] EOC [paragraph] 92-626 (NSW Equal Opportunity Tribunal (`NSWEOT')). In this case, the complainant was able to rely upon the ground of perceived homosexuality, which had recently been introduced as s 49ZG of the Anti-Discrimination Act 1977 (NSW). Even more provocatively, in a claim of same-sex `hostile environment' sexual harassment, the US Supreme Court found that the acts by the heterosexual male harassers constituted sex discrimination: Oncale v Sundowner Offshore Services, 523 US 75 (1998). For further discussion, see below Part III.

(9) Eg Laura Bennett, `Women and Enterprise Bargaining: The Legal and Institutional Framework' in Margaret Thornton (ed), Public and Private: Feminist Legal Debates (1995) 112.

(10) Richard Sennett, The Corrosion of Character: The Personal Consequences of Work in the New Capitalism (1998) 22-7.

(11) 42 USC [section] 2000-e (1994), based on Title VII of the Civil Rights Act of 1964, Pub L No 88-352, 78 Stat 241.

(12) Catharine MacKinnon, The Sexual Harassment of Working Women (1979) 59.

(13) Margaret Thornton, `Feminism and the Contradictions of Law Reform' (1991) 19 International Journal of the Sociology of Law 453, 465.

(14) Margaret Thornton, The Liberal Promise: Anti-Discrimination Legislation in Australia (1990) 8.

(15) Ibid 6. On the issue of the probative burden on complainants to establish the causative nexus, see Director-General of Education v Breen [1984] EOC [paragraph] 92-015, 72428-9 (Street CJ) (NSWCA); Haines v Leves [1987] EOC [paragraph] 92-192, 76 844 (Kirby P) (NSWCA).

(16) For a critique of the sex/gender distinction, see Moira Gatens, `A Critique of the Sex/Gender Distinction' in Sneja Gunew (ed), A Reader in Feminist Knowledge (1991) 139; Michelle Boivin, `The Category of "Woman/Women" in Discrimination Based on Sex' (1999) 14 Canadian Journal of Law and Society 203.

(17) Thornton, `EEO in a Neo-Liberal Climate', above n 5, 83-5.

(18) Section 5(1).

(19) Section 28(1).

(20) The term `sexual harassment' is associated pre-eminently with the work of Catherine MacKinnon in the US:' see, eg, MacKinnon, above n 12, xi, 25-55. Schultz points out that several US authors used the term prior to MacKinnon from the mid-1970s. In particular, she notes that Carroll Brodsky used the term in a broader, less specifically sexualised manner than MacKinnon: Schultz, above n 3, 1696-705.

(21) Rosemary Pringle, Secretaries Talk: Sexuality, Power and Work (1988) 93.

(22) The US material indicates that at least 90 per cent of the incidents of workplace sexual harassment involve male harassers and female targets: see Martha Langelan, Back Off! How to Confront and Stop Sexual Harassment and Harassers (1993) 50-1. Precise Australian figures are not available but a review of the reported decisions suggests that they are roughly comparable.

(23) See, eg, SDA 1984 (Cth) s 27.

(24) At 1 July 2002, no such cases had been reported in Australia. For discussion of complaints involving the harassment of lesbians, see Chapman and Mason, above n 7.

(25) Eg Wilson v Phoenix Contracting Services Pty Ltd [1998] EOC [paragraph] 92-936 (Victorian Administrative Decisions Tribunal (`VADT')), where a man sued both another man and a woman.

(26) Eg Greenhalgh v National Australia Bank Ltd [1997] EOC [paragraph] 92-884 (Human Rights and Equal Opportunity Commission (`HREOC')).

(27) This was one of the allegations from the Anita Hill-Clarence Thomas case referred to above n 2. See also Jane Mayer and Jill Abramson, Strange Justice: The Selling of Clarence Thomas (1994) 96.

(28) See, eg, Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217.

(29) See, eg, Fornaro v Strachan [1998] EOC [paragraph] 92-955 (Northern Territory Anti-Discrimination Commission (`NTADC')).

(30) See, eg, Holden v Anther Pty Ltd [1998] EOC [paragraph] 92-912 (Western Australian Equal Opportunity Tribunal (`WAEOT')).

(31) Lallard v Tweed Art Framing Co [1999] EOC [paragraph] 93-036 (NSW Anti-Discrimination Tribunal (`NSWADT')).

(32) In-house inquiry conducted by the author.

(33) See Thornton, The Liberal Promise, above n 14, 5, 186-7.

(34) See, eg, Lyon v Godley [1990] EOC [paragraph] 92-287 (WAEOT); Tulk v Moore [1996] EOC [paragraph] 92-870 (Queensland Anti-Discrimination Tribunal (`QADT')); B v Stranon [1997] EOC [paragraph] 92-883 (HREOC); Dawson v Daqui Investments Pty Ltd [1998] EOC [paragraph] 92-913 (WAEOT); Elliot v Nanda [1999] EOC [paragraph] 92-988 (HREOC); Gliddon v Woodley [2001] EOC [paragraph] 93-114 (WAEOT); Delaney v Pasunica Pty Ltd [2001] EOC [paragraph] 93-173 (Victorian Civil and Administrative Tribunal (`VCAT')).

(35) See, eg, Kalich v Es [1999] EOC [paragraph] 92-961 (NTADC); Q v John Defelice [1999] EOC [paragraph] 93-051 (HREOC); D v Berkeley Challenge Pry Ltd [2001] EOC [paragraph] 93-150 (NSWADT).

(36) A study of the American cases suggests that, in such instances, the burden on the employee is such that she has to show that she was a virtually perfect employee in order to succeed. However, such perfection can also work against the complainant, supporting an inference that the harassment was inconsequential: Susan Estrich, `Sex at Work' (1991) 43 Stanford Law Review 813, 834-9, 846.

(37) See, eg, Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217.

(38) [1984] EOC [paragraph] 92-024 (NSWEOT) (`O'Callaghan').

(39) In the US, lower federal courts had recognised a cause of action since 1976: see MacKinnon, above n 12, 59-77. The Supreme Court recognised the cause of action in 1986 in the case of Meritor Savings Bank v Vinson, 477 US 57 (1986).

(40) O 'Callaghan [1984] EOC [paragraph] 92-024, 75 516.

(41) MacKinnon, above n 12, 162.

(42) O'Callaghan [1984] EOC [paragraph] 92-024, 75 516.

(43) Shades of what Helen Garner expected a student to do to her College Master are apparent here: see Garner, above n 2, 27, 40. Generally, Garner's thesis is that self-help was the appropriate response, and that it was `punitive' to complain to an outside body because of the adverse impact on the alleged harasser's career: at 15. For critical commentary on this case, see Mead, above n 2.

(44) O'Callaghan [1984] [paragraph] 92-024, 75 516.

(45) See, eg, Jenny Morgan, `Sexual Harassment and the Public/Private Dichotomy: Equality, Morality and Manners' in Margaret Thornton (ed), Public and Private: Feminist Legal Debates (1995) 89, 89-92.

(46) As a matter of constitutional law, sexual harassment was found to constitute sex discrimination for the purposes of the Convention on the Elimination of All Forms of Discrimination against Women, opened for signature 18 December 1979, 1249 UNTS 13 (entered into force 3 September 1981): Aldridge v Booth (1988) 80 ALR 1, 14-16.

(47) See, eg, Pringle, above n 21, 90-2.

(48) In the US, there has been a protracted debate over whether the appropriate standard should be the `reasonable person' or the `reasonable woman'. The argument is that the `reasonable person' represents a male standard, despite its veneer of neutrality: Kerns, above n 20, 210-12. In Australia, Einfeld J referred to a `reasonable woman' in Hall v Sheiban [1988] EOC [paragraph] 92-227 (HREOC) who was seemingly expected to tolerate unwanted sexual overtures and touching: at 77 144. Not only was this standard rejected by the Federal Court as an error of law in Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217, it was also subject to a trenchant attack: see, eg, Margaret Thornton, `In the Eyes of the Law' in Edward Davis and Valerie Pratt (eds), Making the Link: Affirmative Action and Industrial Relations (1990) 47, 50-2; Jenny Morgan, `Sexual Harassment: One Man's View' (1988) 13 Legal Service Bulletin 157, and has not been seriously pursued since.

(49) SDA 1984 (Cth) s 28A(1); Anti-Discrimination Act 1977 (NSW) s 22A(b). See also Equal Opportunity Act 1995 (Vic) s 85(1); Anti-Discrimination Act 1991 (Qld) s 119(f); Equal Opportunity Act 1984 (SA) s 87(11); Discrimination Act 1991 (ACT) s 58(1); Anti-Discrimination Act 1992 (NT) s 22(e)(ii). Somewhat broader wording is included in the Anti-Discrimination Act 1998 (Tas) s 17(1).

(50) Morgan, `Sexual Harassment and the Public/Private Dichotomy', above n 45, 92-3.

(51) Schultz, above n 3, 1692.

(52) The Latin phrase in full is expressio unius personae vel rei, est exclusio alterius (`[t]he express mention of one person or thing is the exclusion of another'): R S Vasan (ed), Latin Words & Phrases for Lawyers (1980) 85. Applying the maxim here, the express proscription of sexual harassment in one part of the legislation infers that other unspecified forms of harassment may not be covered by a general proscription of sex discrimination.

(53) Eg Morgan, `Sexual Harassment and the Public/Private Dichotomy', above n 45, 91.

(54) SDA 1984 (Cth) s 28A(1).

(55) The SDA was amended by the Sex Discrimination and Other Legislation Amendment Act 1992 (Cth). Only Western Australia has retained the original formulation in its definition of sexual harassment: Equal Opportunity Act 1984 (WA) s 24(3).

(56) See, eg, the discussion of the Sex Discrimination and Other Legislation Amendment Bill 1992 (Cth) in Commonwealth, Parliamentary Debates, House of Representatives, 3 November 1992, 2396 (Paul Keating, Prime Minister); Commonwealth, Parliamentary Debates, Senate, 8 December 1992, 4366 (Michael Tate, Minister for Justice).

(57) See, eg, Jeffrey Minson, `Second Principles of Social Justice' (1992) 10 Law in Context 1, 12-17. For a critique, see Morgan, `Sexual Harassment and the Public/Private Dichotomy', above n 45, 108-9.

(58) See, eg, Strathclyde Regional Council v Porcelli [1986] IRLR 134.

(59) House of Representatives Standing Committee on Legal and Constitutional Affairs, Half Way to Equal: Report of the Inquiry into Equal Opportunity and Equal Status for Women in Australia (1992) 31.

(60) See, eg, Home v Press, Clough Joint Venture [1994] EOC [paragraph] 92-591 (WAEOT); Carroll v Zielke [2002] EOC [paragraph] 93-177 (NSWADT).

(61) Eg Cynthia Cockburn and Susan Ormrod, Gender and Technology in the Making (1993); Cynthia Cockburn, Machinery of Dominance: Women, Men and Technical Know-How (1986); Ann Game and Rosemary Pringle, Gender at Work (1983) 16; Margaret Thornton, `Job Segregation, Industrialisation and the Non-Discrimination Principle' (1983) 25 Journal of Industrial Relations 38.

(62) [1997] EOC [paragraph] 92-879 (QADT) (`Hopper').

(63) Julia Kristeva, Powers of Horror: An Essay on Abjection (Leon Rondiez trans, 1982 ed) [trans of: Pouvoirs de l'horreur]. Kristeva posits the `abject' as an othemess that cannot be assimilated, `the jettisoned object' that is `radically excluded': at 1-2.

(64) Cf Carroll v Zielke (2002) EOC [paragraph] 93-177 (NSWADT).

(65) Beth Quinn, `The Paradox of Complaining: Law, Humor, and Harassment in the Everyday Work World' (2000). 25 Law and Social Inquiry 1151, 1177.

(66) See above n 50 and accompanying text.

(67) See Submission to Senate Standing Committee on Foreign Affairs, Defence and Trade, Parliament of Australia, Inquiry into Sexual Harassment in the Australian Defence Force, November 1993, 54 (Sue Walpole, Sex Discrimination Commissioner).

(68) [1998] EOC [paragraph] 92-927 (VADT). The respondent's appeal to the Supreme Court of Victoria was denied: [2000] EOC [paragraph] 93-080 (`McKenna').

(69) McKenna v State of Victoria [1998] EOC [paragraph] 92-927, 78 191.

(70) [2000] EOC [paragraph] 93-112 (HREOC) (`Williams').

(71) Ibid 74 510.

(72) Walpole, above n 67, 56.

(73) Thornton, Dissonance and Distrust, above n 6, 259-60.

(74) [1994] EOC [paragraph] 92-626 (NSWEOT) (`Daniels').

(75) Ibid 77 340.

(76) Anti-Discrimination Act 1977 (NSW) s 49ZG.

(77) Oncale v Sundowner Offshore Services, 523 US 75 (1998). Cf Quick v Donaldson Co Inc, 90 F 3d 1372 (8th Cir, 1996). See also Marianne C DelPo, `The Thin Line between Love and Hate: Same Sex Hostile Environment Sexual Harassment' (2000) 51 Labor Law Journal 15.

(78) On cultures of masculinity, see Richard Collier, Masculinities, Crime and Criminology (1998); R W Connell, Masculinities (1995); Cynthia Cockburn, In the Way of Women: Men's Resistance to Sex Equality in Organizations (1991).

(79) See above Part III.

(80) Judith Wyatt and Chauncey Hare, Work Abuse: How to Recognize and Survive It (1997) 4-10.

(81) Valerie Sutherland and Cary Cooper, Strategic Stress Management: An Organizational Approach (2000) 171.

(82) Emily Bassman, Abuse in the Workplace: Management Remedies and Bottom Line Impact (1992) 43-50.

(83) Schultz, above n 3, 1754.

(84) SDA 1984 (Cth) s 28A(2).

(85) Section 14(2)(b).

(86) Section 14(2)(d).

(87) [1985] EOC [paragraph] 92-127 (NSWEOT) (`Hill'). By way of comparison, the US Supreme Court recognised hostile workplace harassment as sex discrimination in Meritor Savings Bank v Vinson, 477 US 57 (1986).

(88) Hill [1985] EOC [paragraph] 92-127, 76 282.

(89) Ibid 76 290.

(90) Ibid.

(91) Although still uncommon, the reported decisions indicate that the harasser may now sometimes be moved or dismissed. See, eg, Easling v Mahoney Insurance Brokers Pty Ltd [2000] EOC [paragraph] 93-086 (South Australian Discrimination Commission).

(92) The NSW legislation now includes a separate section devoted to the prohibition of sexual harassment, with wording that is almost identical to that of the federal legislation: Anti-Discrimination Act 1977 (NSW) pt 2A, s 22A.

(93) See, eg, McKinney v Dole, 765 F 2d 1129 (DC Cir, 1985). At first instance, the District Court held that the conduct was not sex discrimination because it was not sexually based. On appeal, however, the Court of Appeals for the District of Columbia Circuit held against this contention: at 1136-7, 1139-40.

(94) [1997] EOC [paragraph] 92-897 (HREOC) (`Dunn-Dyer').

(95) Sara Charlesworth, `Working Mums: The Construction of Women Workers in the Banking Industry' (1999) 4 Journal of Interdisciplinary Gender Studies 12, 14, 18-19.

(96) Dunn-Dyer [1997] EOC [paragraph] 92-897, 77 362.

(97) Ibid 77 358.

(98) Ibid 77 376 (emphasis added).

(99) Charlesworth has argued that even though Susan Dunn-Dyer did not have children, the disparaging references to motherhood were designed to suggest that she belonged to a category of workers who were not serious about their careers: see Charlesworth, above n 95, 20.

(100) Dunn-Dyer [1997] EOC [paragraph] 92-897, 77 381.

(101) Ibid 77 365.

(102) See, eg, Margaret Thornton, `Affirmative Action, Merit and the Liberal State' (1985) 2 Australian Journal of Law and Society 28; Clare Burton, Redefining Merit (Monograph No 2, Affirmative Action Agency, 1988).

(103) Lesley Wright and Marti Smye, Corporate Abuse: How `Lean and Mean' Robs People and Profits (1996) 50-4.

(104) It may be possible to make out a case successfully in negligence, breach of contract or breach of statutory duty. See, eg, New South Wales v Jeffery [2000] Aust Torts Reports [paragraph] 81-580; Waters v Commissioner of Police [2000] 1 WLR 1607. In Arnold v Midwest Radio Ltd [1998] Aust Torts Reports [paragraph] 81-472, the manager of the respondent radio station conducted himself in a manner described by the court as `aggressive, bullying, abusive, belittling and sarcastic': at 65 061. He also, allegedly, boasted that he had a reputation for reducing women to tears: at 65 059. Damages of almost A$600 000 were initially awarded to the plaintiff by the trial judge for psychiatric injury based on negligence and breach of duty to provide a safe workplace under occupational health and safety legislation: at 65 066-7. However, the decision was overturned on appeal: [1999] EOC [paragraph] 92-970. The majority found the quantum `manifestly excessive': at 79 194. Special leave to appeal to the High Court was also rejected: [1999] 19 Leg Rep SL4c (Gummow and Callinan JJ).

(105) Kelson v Forward (1995) 60 FCR 39, 56.

(106) [1996] EOC [paragraph] 92-868.

(107) Ibid 77 075.

(108) [2000] EOC [paragraph] 93-062.

(109) Ibid 74 190.

(110) [1999] EOC [paragraph] 92-996 (VCAT).

(111) Ibid 79 333.

(112) Hall v Naismith [1994] EOC [paragraph] 92-587(1) (HREOC).

(113) [1994] EOC [paragraph] 92-643 (`Djokic').

(114) Ibid 77 418-19.

(115) Ibid 77 420. See also the discussion of Djokic in CCH, Australian and New Zealand Equal Opportunity Law and Practice, vol 1 (at 11-5-00) [paragraph] 58-370.

(116) As in Hall v Naismith [1994] EOC [paragraph] 92-587(1).

(117) Djokic [1994] EOC [paragraph] 92-643, 77 418-19.

(118) Janet Rosenberg, Harry Perlstadt and William Phillips, `Now That We Are Here: Discrimination, Disparagement, and Harassment at Work and the Experience of Women Lawyers' (1993) 7 Gender and Society 415, 426.

(119) Ibid 429.

(120) Thornton, The Liberal Promise, above n 14, 6.

(121) For analysis and critique of the conciliation process, see ibid ch 5 and Anna Chapman, `Discrimination Complaint-Handling in NSW: The Paradox of Informal Dispute Resolution' (2000) 22 Sydney Law Review 321.

(122) HREOC, Annual Report 2000-2001 (2001) reports that 35 per cent of finalised complaints were conciliated, 50 per cent were terminated or declined and 14 per cent were withdrawn.

(123) See above Part III.

(124) The same point has been made in regard to the American experience; Estrich, above n 36, 833.

(125) Dunn-Dyer [1997] EOC [paragraph] 92-897, 77 358.

(126) A union cannot always be relied upon. In Horne v Press Clough Joint Venture [1994] EOC [paragraph] 92-591, the union was held jointly liable for participating in the campaign of harassment and intimidation of the complainants.

(127) The anti-discrimination jurisdiction has the reputation for being somewhat parsimonious in the award of damages compared with more traditional areas of law: Smith v Hehir [2001] EOC [paragraph] 93-165, 75 575.

(128) Schultz, above n 3, 1732.

(129) See above n 55 and accompanying text.

(130) The `make whole' principle, or restoring the injured person to the position he or she would have been in but for the wrongful act, is the underlying principle of tort law, the closest analogy to anti-discrimination law: Hall v A & A Sheiban (1989) 20 FCR 217, 239 (Lockhart J). For a detailed discussion of remedies, see Michael Tilbury, Michael Noone and Bruce Kercher (eds), Remedies: Commentary and Materials (3rd ed, 2000).

(131) Thornton, Dissonance and Distrust, above n 6, 248.

(132) See, eg, Quinn, above n 65.

(133) Estrich, above n 36, 840.

(134) Thornton, `EEO in a Neo-Liberal Climate', above n 5, 85.

(135) Londa Schiebinger, The Mind Has No Sex? Women in the Origins of Modern Science (1989) 1. The original quote, `L'esprit n'a point de sexe', is attributed to Francois Poullain de la Barre: at 1. See also Genevieve Lloyd, The Man of Reason: `Male'and `Female' in Western Philosophy (1984).

MARGARET THORNTON, BA (Hons) (Syd), LLB (UNSW), LLM (Yale), FASSA; Professor, La Trobe Law, La Trobe University. A version of this article was presented as the keynote address at the Working Against Sexual Harassment (WASH) Seminar, Equal Opportunity Commission, Melbourne, 8 March 2002.
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Title Annotation:Australia
Author:Thornton, Margaret
Publication:Melbourne University Law Review
Date:Aug 1, 2002
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