IWD 2026 Balancing the Scales: Addressing Gender Discrimination in the Workplace

0:00
You're listening to Explain That by Velocity Legal, the podcast that keeps business owners and professional advisers ahead of the curve in an ever-changing legal landscape.

International Women's Day 2026 carries the theme Balance the Scales. In workplaces, gender discrimination remains one of the most common and costly areas of legal exposure.

0:22
This episode takes an employer-focused approach, how discrimination arises in practice, what the law requires, and practical steps that businesses can take to reduce risk and create fairer workplaces.

In this discussion, I'm joined by Jess Hill, who's a director of Velocity Legal's Employment Law team.

0:41
Welcome back to the show, Jess.

Thanks, Andrew.

Jess, let's start with, we're recognising International Women's Day and the subject is gender discrimination. I guess let's start with basics. What is gender discrimination from a legal perspective and what laws are we intersecting with?

1:00
Yeah. So look, most people understand what gender discrimination is at a high level. It's treating someone unfavourably because of their gender, very, very big principle.

Then you look at, well, where does that come from from a legislation perspective?

1:16
So we've got the Sex Discrimination Act in Australia, and that's a piece of Commonwealth legislation. In that, it protects against gender discrimination, but also things like pregnancy, sexual identity, and having a safe work environment and not having a hostile work environment because of sex-based discrimination.

1:38
In that legislation, it puts in place protections for employees, but it also puts in place obligations for employers.

So there is, in fact, a positive duty for employers to make sure that they don't discriminate for gender-based reasons, but also that they make sure that they don't have a hostile work environment.

2:02
There's also state legislation that basically mirrors the same thing in all the states. The wording is a little bit different, but the principles are almost identical.

So I'll focus on the Sex Discrimination Act because that obviously covers national, but there are individual state differences.

2:18
So with the positive duty, could you explain what that sort of entails? I guess from a practical perspective, I imagine that's not a sort of reverse onus type principle.

It's more that there are steps you need to show, some sort of steps taken. Is that what happens in practice?

2:36
Yeah. So really it's that you can't just say, well, we as an employer don't discriminate for gender, full stop.

It's really making sure that you've put in place systems to ensure that that doesn't happen and that you don't have a hostile work environment.

2:57
And so the employer has to take all reasonable steps to effectively prevent unlawful discrimination based on gender, and that's for both direct discrimination and indirect discrimination.

3:14
So if you look at gender discrimination across the board, and this is mirrored in both the state and federal legislation, you've got two different categories.

You've got your direct discrimination, which is you are making decisions because of someone's gender, and that's a sort of positive decision that you're making.

3:35
So that might be someone comes in to interview, they're looking to get a job, and the recruiter or the HR person says, you know, we're not going to hire that person because she's a young woman, even though she's the most qualified candidate, because she might want to have kids and we don't want someone who's going to have kids.

3:56
That's direct discrimination. You're making that decision because of her gender.

Indirect discrimination is more challenging often for employers to understand where that line is, but it's really about having in place systems that disproportionately affect one group over another and there isn't a legitimate or reasonable reason for that.

4:24
So that might be, you've got a policy that someone has to go to a particular meeting at 7:00 PM once a week.

Yeah.

And everyone has to do that. It's not just for women. It's for everyone. And if you don't attend that meeting, you're not going to be up for promotion because, you know, it's a key meeting. It's a staff meeting.

4:44
But it's at 7:00 every week.

So that's a sort of indirect discrimination. The policy itself isn't inherently bad, but it impacts people with caring responsibilities, which is typically women, a lot more than men.

5:02
So the policy itself isn't inherently wrong, but it has that imbalance in it. And unless there's a reason, a legitimate reason for that, then that can be indirect discrimination.

I would hope in 2026 that we're not so much looking at the direct discrimination, although I'm sure that comes up as well.

5:23
And it's more this sort of indirect discrimination that maybe it's not front of mind, but people come with good intentions, or perhaps not good intentions, but not bad intentions.

But what they're doing is creating a system that isn't giving that sort of equal opportunity.

5:41
Yeah, I would hope the same.

And certainly we probably see more of that indirect discrimination. It's also harder to be prosecuted than direct discrimination.

5:58
Direct discrimination can be quite obvious. You've made a choice because of someone, because they're pregnant or they're breastfeeding or they're a woman.

Whereas indirect discrimination, it can be more insidious. It's really, you know, the system is not set up for equality.

6:14
The system is not set up for everyone to succeed, and the government has been trying to rectify that.

So that's where that positive duty comes from. There was a piece of work that the government did about Respect@Work. It wasn't just around this, it was much broader.

6:31
But what came from that was effectively standards that employers are not required to comply with, but encouraged to comply with.

And that's really putting in place systems to avoid these sorts of things.

6:48
People mostly don't trip up on direct discrimination. And if they do, well, you know, so be it.

It's more they've got in place a policy that seems neutral on its face, but nobody's looked behind what that actually means.

7:06
Yeah, yeah, understood.

I want to get to, I guess, what are the flashpoints? The employment journey has all sorts of phases every day at work, but what are the key things? You mentioned recruitment, I guess, is probably one, but what are the other flashpoint areas where the risk is heightened?

7:27
Yeah. So recruitment is definitely the first touch point.

It can be more challenging, though, because you may have interviewed a lot of candidates, and how do you say that one was more qualified than another?

7:43
And so it probably doesn't get that much press just because it's such a challenging thing to say that I lost out on that job.

And a person doesn't have skin in the game at that point as well.

And so that's, you know, it's probably quite common, but it probably doesn't get airtime.

7:59
It's things like promotion. So you're up for a promotion and then your male colleague succeeds in that, and you think that there is either direct or indirect discrimination at play.

Or you're returning from leave.

8:16
Maternity leave is a big one, or parental leave. Someone puts you forward for a promotion and you're on maternity leave, and somebody just says, oh, I'm sure she won't want that role because she's going to have so much on her plate.

8:33
She wouldn't want to consider that. I'm not putting her forward.

It's those kinds of small touchpoints where it may have been well-meaning. It may not even have to be malicious. In fact, a lot of the time it isn't malicious, but it's making those assumptions that, oh no, this person won't want that opportunity because they're going to be, you know, they've got carer responsibilities or things like that.

8:56
So it's around that.

Also flexible work is a big one, and this is not within the Sex Discrimination Act. This actually sits within the Fair Work regime, and there is a cross point across those.

9:13
So you've got your Sex Discrimination Act and your state legislation, but then you've obviously got the Fair Work Act, and that has within it adverse action, which we've spoken about before, where you can't make a decision for a protected attribute.

9:30
And those attributes include gender, pregnancy, breastfeeding, all of those things.

So there is an overlap between the two, and those adverse decisions don't need to just be firing and hiring.

It's really decisions around promotion, decisions around pay, things like that, any adverse decision that you make.

9:54
And then you've got within the Fair Work Act actual requirements to consider flexible work arrangements.

And there are attributes that if someone meets, you have to go through a process to consider their request to work flexibly.

10:11
And fair in Victoria, perhaps, might be constitutionally trying.

Well, that's it. We'll watch this space.

But yeah, certainly. And this is where a lot of employers are also tripping up. They have the conversation but don't follow what is quite a prescriptive regime in the Fair Work Act.

10:29
And often the employee doesn't follow it either. And then, you know, it gets rejected for what might be really legitimate reasons, and they fall foul of the prescriptive process that they haven't followed.

You know, NAB recently fell foul of this.

10:47
They had required all of their employees to come back to work. One of their employees had been working from home exclusively since COVID and was doing very well.

And they just said, no, blanket requirement, you've got to come back.

Without considering the.

Without considering that.

11:03
And she'd made a request, and she had school-age children that she was caring for. She was working very well, and NAB just went, no, you know, we don't care. You've got to come back in.

They didn't follow the process, but then also they didn't look through, well, okay, is she able to do her job with her care responsibilities?

And was the business actually suffering from that?

11:29
And the court resoundingly said no, she was very capable of doing her job from home and didn't need to return and had care responsibilities.

And NAB should have actually considered that.

So it's not just the broader discrimination landscape. You've got to look at flexible work.

11:45
You've got to look at adverse actions. So it's very intertwined with each other.

And I imagine also on terminations and redundancies and things like that, that comes in again at that point, right?

Yeah. I mean termination, you would hope that there's been some well thought out reasoning around.

12:06
So we don't tend to find it necessarily as much there. You would hope you've got a documented process and you've thought out the reasons that you're terminating someone.

But certainly redundancy, that's one where people can sort of hide behind a bit more, and they can say, well, there's a strategy in place, and these are the roles we've chosen to make redundant.

12:28
It's not the person, it's the role.

But often that may not be for a legitimate reason. And that's where that adverse action regime comes in.

So it's really looking across the life cycle, making sure you have in place systems to prevent things sort of creeping in as an employer under that positive duty.

12:52
Yeah. And if you don't meet those requirements, you will be vicariously liable for things that happen, and that includes sexual harassment.

So it's all within the same legislation and it's all within the same regime.

And you're basically saying, okay, if I haven't taken all reasonable steps to make it a safe work environment, to remove gender discrimination, then you won't have passed that test, and you'll be vicariously liable for whatever actions come from that as an employer.

13:28
Which would be a scary prospect.

I wanted to expand upon that with the vicarious liability and sexual harassment. I know that the answer is always, in law, it depends. But what would employers be looking at or would they be up for in those situations where, let's say, they don't have a proper process, they haven't done what's reasonable, and then a sexual harassment incident happens?

13:58
Yeah, unfortunately, the answer for employers is that it's very hard to do everything that is reasonable.

And I'm yet to see someone succeed in court by saying that they weren't vicariously liable because they'd done all things reasonable.

14:16
And it's a very high standard. A lot of people put in place a policy and they think, well, that's it.

And I've done my policy or we've done some training, you know, that's it, I've trained on it. So if sexual harassment occurs, well, I told them not to.

And I told them, you know, here's what the policy says.

14:31
That's not enough. It needs to really be ingrained in your culture, and that usually comes from leadership.

But it's really having that sort of culture that doesn't tolerate that. You can't prevent people doing the wrong thing, obviously, but to get over that test, it would really be having policies, having training regularly, having leadership speak about that, making sure that was ingrained into your culture and that that's done repetitively.

15:09
It's not just a one and done, you know, set and forget sort of scenario.

So the risk for employers is really significant as well. What would have been a sexual harassment award of damages, you know, 10 years ago you might have looked at $20,000 for general damages, and that's for your hurt and humiliation and not your economic loss.

15:35
Now you're looking at $150,000, $200,000 and, in fact, most recently $300,000.

Yeah.

So the damages are really significant. And that is because there is this sort of public policy impetus to stamp that out in Australia.

15:53
Yeah.

So the courts are taking it seriously, the government's taking it seriously, and they expect employers to take it seriously.

And when they don't, they reap the consequences.

Yeah, yeah.

And that's with all gender discrimination across the board.

16:09
Now, obviously the consequences in sexual harassment can be more severe because if someone has ultimately a psychological injury because of that, then obviously that's going to be more significant.

If someone just misses out on a job, there will be an economic aspect to that and there may be some sort of hurt and humiliation, but it's not going to be as significant.

16:34
So I suppose the lesson for employers is really ingrain it into everything you do.

So have it from leadership down. Make sure you've got policies in place, review every now and then.

16:49
Have a look across your organisation and look at, you know, where are we hiring? Where are we firing? What are the statistics?

If we're giving promotions and pay rises, are they across the levels doing some sort of checking on your own systems?

17:07
We might say something, but are we promoting men far more than we're promoting women?

Or we're giving them higher pay rises than we're giving women, and putting in place those systems to double-check yourself.

Putting in place robust complaint policy processes.

17:26
So, you know, if someone does have an issue, how do they talk to you about it? What's the system in place?

You know, I don't want it to be all doom and gloom. There are a lot of employers that do this really well, and there are a lot of employers that have really put in place a lot of work to make their work environments a more positive place and to avoid these sort of typical gender discrimination issues.

17:53
But it's really, particularly for smaller employers, they may just never have turned their mind to it. It's not malicious, it's just that, you know, you're getting on with the business of doing what you're doing and you may not have turned your mind to it.

And then those inherent biases just sort of creep in.

Understood.

I wanted to ask a question about, you know, certain industries are male-dominated, some industries are female-dominated.

18:17
What special considerations, if any, are there for employers in those type of situations? Let's say it's a male-dominated industry. I mean, do they do things differently? Is it the same? Should they be thinking about quotas, or what do they do?

18:36
Do they do anything differently or not?

There's certainly no obligation just to implement a quota or to hire more women just for the sake of having more women.

I know this has been a big thing in, for example, the mining industry, where the big players are trying to bring that gender balance a bit closer because it was very skewed masculine.

19:00
And realistically, sometimes you just don't have the candidates that want to work in that job or it's just an area that's not attractive to one gender or the other.

It's more when you do have a candidate, are you considering them on their merits?

19:18
Or are you just going, oh, well, the whole team's male, and so I don't want to bring in a female leader because that's going to disrupt it, so I'm just going to hire a man.

It's checking those systems. And then if you do have women who are starting to come into those industries, making sure that that's not a hostile work environment for them.

19:47
You know, that you don't have this really toxic blokey culture where people are doing crude jokes or things like that.

And you're just making sure that it's not a hostile work environment.

So there's no obligation just to hire women for the sake of hiring women.

20:05
But it's just making sure that you've got systems in place to deal with any kind of unconscious bias.

Jess, I wanted to ask you a few different scenarios about situations in the workplace that may be gender discrimination.

I'm going to ask you, are they potential discrimination? What type of discrimination they are, whether they're indirect or direct?

20:22
And what perhaps would an employer do better to manage these type of situations?

So here we go.

First scenario, senior manager decides not to promote a woman returning from maternity leave because he assumes she will not want the added responsibility.

20:38
We talked about this one a little bit.

Yeah. Look, it's direct discrimination and it's definitely gender discrimination.

I think the answer from an employer perspective is not making assumptions for someone.

Communication. Communicate.

20:54
Yeah. Ask the person if they would like that promotion, if they want to be considered for it. And if they do, then running through the same process that you're running for everyone else.

Yeah, that's a pretty easy one and a pretty clear one.

Good.

Well, number two. Company offers flexible work arrangements informally, but in practice most approvals go to male employees in senior roles.

21:19
Yeah, look, it's most likely gender discrimination. It's probably indirect discrimination.

And it's really, one, you shouldn't be having informal flexible work arrangements because the legislation requires you to have formal flexible work arrangements.

21:37
So you need to actually put those in place as per the legislation.

So that's the first step.

Second is again, check your systems. Why are you hiring typically or promoting typically more men? Why are they getting those opportunities and who's making those decisions?

21:56
And are they made on reasonable grounds, or are you just preferring men because it's easier?

So it's just going back to your systems again and reviewing any kind of neutral policies that are actually skewing one way.

Next scenario I wanted to ask is, let's say we've got a business pays employees based on individually negotiated salaries, but over time it results in a consistent gender pay gap.

22:12
Yeah. This is one that there's maybe a bit more nuance around.

There's nothing wrong inherently with individually negotiated salaries.

22:33
What I would say is that you should be benchmarking them at some point.

If you've got people in the same roles with similar amounts of experience and they're being paid wildly different amounts, why is that?

Is it just because one person is more pushy and asking for pay rises, or is it something systemic?

22:50
And if it is that some of the male employees are just more forthright asking for pay rises, then what can you do to prevent that from happening?

You know, is it you're trying to put bands in place so that everyone is across the board similar for the same role?

23:11
Or do you need to have a system where everyone has to formally put in a submission around their pay or something like that?

Or you're putting in place metrics around it, performance banding, or PDP, where people are being measured against objective things and then pay is tied to that to make it less, you know, whoever asks.

23:35
Yeah, get more of a system, more of a process.

Correct.

Benchmarks, KPI.

Yeah.

And look, if you've got, if you're a smaller employer and you maybe only have one person in one job, it can sometimes creep in in different ways.

23:51
Are you hiring only women for your admin roles and men for your more senior roles? You know, having a look at those sort of across the board metrics.

Yeah.

Last one. A business hires a man with less experience than a female applicant because he is a better cultural fit.

24:11
I think I know the answer to this one.

Do you want to have a go, Andrew?

I would say yes, that's direct discrimination because you've got two candidates, you're ostensibly trying to defend it on cultural fit grounds, but it really doesn't cut the mustard.

24:31
Spot on, excellent.

Okay, well if this tax law thing and hosting podcast doesn't work out, then you've got a career in employment law.

Okay, well, I guess in the time left I wanted to talk a little bit about, what's the complaint process look like?

24:48
Let's say one of these things has happened, someone is aggrieved, what do they do?

What avenues can they pursue it through?

I mean, look, hopefully they would pursue it internally in the first place.

There's no obligation to do that, but typically things can be, well, a lot of the time things can be resolved internally.

25:09
If they're not comfortable doing that, or there is no internal complaints process, or they've run that course and it hasn't got anywhere, you can go through to the Australian Human Rights Commission, and they deal with all matters in respect of the Sex Discrimination Act.

25:25
So we're talking nationally again here, and you effectively make that complaint.

They will typically set it up for a conciliation, and then if it's not resolved, the parties basically go on to court.

25:41
So that's in respect of sex discrimination.

Otherwise, if you've got an adverse action case, then you're running through Fair Work, at least in first instance.

The process is very similar. You're going to a conciliation, and then if it's not resolved, you're going to court.

And I imagine.

25:58
In these type of situations, you're probably dealing with multiple breaches or potential breaches and different legislation.

And so, as you said earlier, there could be an intersection between the two.

Yeah. And mostly the candidate, or the individual aggrieved, will have made a decision about which way they want to go and what legislation they're going to pursue it under.

26:21
The Fair Work legislation has the opportunity to get penalties awarded for breaches of the Act.

The Sex Discrimination Act, if it goes to federal court, you can get costs.

So there's kind of pros and cons to both regimes.

26:37
But, you know, the idea is to bring all the parties to a conciliation to hopefully resolve.

The only thing I would say is the Australian Human Rights Commission has a long backlog, and so they're actually taking quite a long time to be able to list matters, in some cases up to a year.

26:59
So it may not be a particularly quick process.

Likewise, Fair Work are inundated with AI complaints.

But AI was going to make everyone's life easier.

Well, it's not making the Fair Work Commission's life easier.

I think they've spiked by like 60 something percent with AI-generated claims, so they're putting in place a process to deal with that.

27:20
But they are also inundated and they are also taking a very long time to get back and list things.

So while the systems are in place, it's not necessarily a quick fix.

Final question. If I'm an employer and I take away one, only one thing, hopefully I take away more than one thing, but one thing from this discussion on gender discrimination, what's your number one takeaway?

27:47
I think it's really stepping back and looking at, as an employer and across the whole of your business, are there areas that gender discrimination, even in that indirect way, could be creeping in and what can you do to prevent that?

28:07
Most cases, people are not malicious. They're not doing it intentionally.

So it's just taking stock and putting in place what can be small changes, you know, policies, processes, just to avoid people's individual biases creeping in.

28:25
That's well said.

Well, I'd like to thank you for being part of this episode.

I'd like to encourage employers listening, if they'd like guidance reviewing their workplace policies or discrimination risks, to contact Jess Hill and she can have a conversation with you about those risks.

Thanks once again.

28:41
Thanks, Andrew.