tag:theconversation.com,2011:/us/topics/anti-discrimination-laws-26178/articlesAnti-discrimination laws – The Conversation2023-02-27T02:40:29Ztag:theconversation.com,2011:article/2005322023-02-27T02:40:29Z2023-02-27T02:40:29ZReligious schools can build a community of faith without discriminating. The law should reflect that<figure><img src="https://images.theconversation.com/files/512308/original/file-20230226-4560-2owyak.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Dean Lewins/AAP</span></span></figcaption></figure><p>In 2018, Australians were shocked to learn that religious schools still had the right to discriminate against LGBTQ students and staff.</p>
<p>Politicians called it “<a href="https://www.news.com.au/lifestyle/parenting/school-life/awful-plan-to-reject-gay-students-teachers/news-story/c0a77bff2e30a45e6728e1217f815a60">utter crap</a>”. Polling <a href="https://www.smh.com.au/politics/federal/fairfax-ipsos-poll-huge-majority-of-australians-oppose-laws-banning-gay-students-and-teachers-20181014-p509kv.html">found</a> 74% of Australians opposed it.</p>
<p>Federally, both the then-Coalition government and Labor opposition committed to protect LGBTQ students from discrimination. Yet, almost five years later, laws allowing religious schools to expel LGBTQ students and sack LGBTQ staff remain in place.</p>
<p>Late last year, Attorney-General Mark Dreyfus <a href="https://www.theguardian.com/australia-news/2022/nov/04/labor-takes-step-towards-new-religious-discrimination-laws-with-review-of-exemptions-for-schools">asked</a> the Australian Law Reform Commission (ALRC) to inquire into how to end discrimination against LGBTQ students and staff while allowing religious schools to build and maintain their communities of faith. </p>
<p>Last month, the ALRC released its <a href="https://www.alrc.gov.au/publication/adl-cp-2023/">consultation paper</a>. It recommended the exceptions in federal discrimination law allowing religious schools to discriminate be removed.</p>
<p>In response, some faith leaders and commentators have argued the ALRC proposals <a href="https://www.theaustralian.com.au/commentary/editorials/religious-freedom-includes-choosing-teachers-of-faith/news-story/486c53e90bfebfb20e20d8bc3df5c54e">threaten the future of religious education</a>, represent a “<a href="https://www.theage.com.au/national/religious-schools-must-be-allowed-to-keep-the-right-to-discriminate-20230220-p5clwi.html">fundamental attack</a>” on religious freedom, and would be “<a href="https://www.spectator.com.au/2023/02/stripping-christian-schools-of-purpose-has-the-government-counted-the-cost/">catastrophic</a>” for religious schools.</p>
<p>This is entirely untrue.</p>
<p>The ALRC proposals are sensible, clear and necessary. They cut through the noise that has surrounded these issues for many years. They appropriately protect both the rights of LGBTQ kids and teachers to be treated with dignity and respect, and of religious schools to maintain their connection to faith.</p>
<p>There are still some improvements that can be made. But this is our best opportunity to ensure federal discrimination laws finally catch up with contemporary values.</p>
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Read more:
<a href="https://theconversation.com/schools-can-still-expel-lgbtq-kids-the-religious-discrimination-bill-only-makes-it-worse-172494">Schools can still expel LGBTQ+ kids. The Religious Discrimination Bill only makes it worse</a>
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<h2>What are the ALRC proposals?</h2>
<p>At the federal level in Australia, exceptions for religious schools have always existed.</p>
<p>Currently, the Sex Discrimination Act <a href="http://www6.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/sda1984209/s38.html">allows religious schools to discriminate</a> on the basis of sex, sexuality, gender identity, marital status, and pregnancy where the discrimination is in “good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed”.</p>
<p>This sounds like a complicated test, but it is very easy to satisfy. A religious school simply has to prove there are <em>some</em> members of its religion who would want to keep out, or treat differently, particular students or teachers - such as LGBTQ students or unwed teachers.</p>
<p>The ALRC proposes removing these exceptions. This would, finally, make it unlawful for religious schools to discriminate in this way.</p>
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<img alt="" src="https://images.theconversation.com/files/512315/original/file-20230226-2241-eip5bp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/512315/original/file-20230226-2241-eip5bp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/512315/original/file-20230226-2241-eip5bp.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/512315/original/file-20230226-2241-eip5bp.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/512315/original/file-20230226-2241-eip5bp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/512315/original/file-20230226-2241-eip5bp.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/512315/original/file-20230226-2241-eip5bp.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">The ALRC proposals would prevent discrimination against LGBTQ students and teachers while allowing faith schools to maintain a religious community.</span>
<span class="attribution"><span class="source">Shutterstock</span></span>
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<p>The ALRC also proposes reforms to ensure religious schools can still build and maintain a community of faith through hiring and termination of staff. These reforms would allow schools to preference staff on the basis of their religion – but not sex, sexuality or gender identity – where religion is a genuine occupational requirement of their role.</p>
<p>Christian schools could hire Christian teachers, Jewish schools could hire Jewish teachers, and Islamic schools could hire Muslim teachers.</p>
<p>Several states and territories, including <a href="https://www.legislation.tas.gov.au/view/html/inforce/current/act-1998-046#GS51@EN">Tasmania</a> and <a href="http://classic.austlii.edu.au/au/legis/vic/consol_act/eoa2010250/s83a.html">Victoria</a>, already adopt a similar approach. Not only has the sky not fallen, but religious schools in Australia only seem to be <a href="https://www.abc.net.au/news/2023-02-15/abs-data-shows-public-private-school-enrolments-divide/101976204">growing</a>. </p>
<p>The ALRC has also proposed that religious schools be granted a right to terminate the employment of staff who actively undermine the “ethos” of the school’s religion, where the termination is proportionate in the circumstances.</p>
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Read more:
<a href="https://theconversation.com/australians-reject-discrimination-that-is-based-on-religious-belief-new-research-186751">Australians reject discrimination that is based on religious belief: new research</a>
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<h2>How would the proposals affect religious schools?</h2>
<p>The ALRC proposals would stop religious schools from expelling students or subjecting them to different treatment to their peers because they are gay or transgender. These proposals would also stop a religious school from sacking a teacher because, for instance, they are a single mother or in a relationship outside of marriage.</p>
<p>What the proposals would not do is force religious schools to hire or continue the employment of staff who fail to uphold reasonable and non-discriminatory codes of conduct and behaviour.</p>
<p>All employers, including religious schools, can adopt non-discriminatory codes of conduct – and the vast majority do. Such codes give employers the right to protect the culture and values of their organisation, including religious values and culture. As long as they are reasonable, nothing in the ALRC proposals affects such codes of conduct.</p>
<p>These proposals simply mean that religious schools would be in the same position as other schools and employers. They will be able to protect their organisational culture and values through existing discrimination law mechanisms.</p>
<h2>How should the proposals be improved?</h2>
<p>As we set out in the Australian Discrimination Law Experts Group’s <a href="https://www.adleg.org.au/submissions/alrc-inquiry-into-religious-educational-institutions-2023">submission</a> to this inquiry, there are three ways in which the proposals should be improved.</p>
<p>First, because of the <a href="http://www6.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/sda1984209/s40.html">complex relationship</a> between the Fair Work Act and federal discrimination laws, some of the ALRC’s proposals regarding the Fair Work Act have unintended consequences.</p>
<p>Certain proposals would actually allow an alternative route - enterprise agreements - through which religious schools could discriminate against LGBTQ staff.</p>
<p>This should be fixed by amending the Sex Discrimination Act to stop it being overridden by Fair Work Act enterprise agreements, and fixing the legal language in the ALRC’s Fair Work Act proposals.</p>
<p>Second, the ALRC has proposed that school curriculums should be entirely exempt from the Sex Discrimination Act. This undermines one of the purposes of the inquiry: to stop LGBTQ kids from being discriminated against at religious schools.</p>
<p>Instead of directly excluding them, schools and teachers could instead use the cloak of the “curriculum” to vilify and discriminate against students on the basis of their sexuality or gender identity.</p>
<p>It is difficult to see how this proposal is consistent with the duty of care owed by schools to students. It is also unclear how such a proposal would operate in conjunction with the development and implementation of the national curriculum. It should be rejected.</p>
<p>Third, the terms “ethos” and “religious ethos” are used throughout the ALRC’s proposals. </p>
<p>The term “ethos” has never been used in any of Australia’s 13 federal, state or territory discrimination laws. Nor is it found in the international human rights treaties on which those laws rely.</p>
<p>Importing the concept of an institution having an “ethos” is unnecessary and confounding. References to “ethos” should be removed.</p>
<p>These three proposals undermine the value of the ALRC’s otherwise sensible proposals. They give rise to confusion and legal complexity. Fixing them will ensure the great promise of the ALRC inquiry is fulfilled.</p>
<p>School is not just about learning maths and English. It is the place young people learn some of their most important formative lessons about their individual worth and the worth of their peers.</p>
<p>Religious schools can build and maintain a community of faith without discriminating against LGBTQ students and staff - indeed, many already do. It is well and truly time for the law to reflect that.</p><img src="https://counter.theconversation.com/content/200532/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Liam Elphick is affiliated with the Victorian Pride Lobby, an organisation that works toward equality and social justice for the Victorian LGBTIQA+ community.</span></em></p><p class="fine-print"><em><span>Robin Banks is affiliated with Outside the Box / Earth Arts Rights, and A Fairer World, both not-for-profit groups that work to promote human rights and social justice, and the inclusion of all people in the full range of societal opportunities.</span></em></p><p class="fine-print"><em><span>Alice Taylor does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Australian Law Reform Commission’s proposals to change federal discrimination law are sensible, clear and necessary.Liam Elphick, Lecturer, Faculty of Law, Monash UniversityAlice Taylor, Assistant Professor, Faculty of Law, Bond UniversityRobin Banks, PhD Candidate and University Associate, University of TasmaniaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1948042022-12-06T02:40:04Z2022-12-06T02:40:04ZSupreme Court signals sympathy with web designer opposed to same-sex marriage in free speech case<figure><img src="https://images.theconversation.com/files/499106/original/file-20221205-12-x28pde.jpg?ixlib=rb-1.1.0&rect=25%2C0%2C8601%2C5755&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Supreme Court case pits LGBTQ rights against right to discriminate.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/APTOPIXSupremeCourtGayRights/d2cb8bc21a6842cfbeabb597936b55e2/photo?Query=(headline:APTOPIX%20OR%20slug:APTOPIX)%20AND%20supreme%20court&mediaType=photo&sortBy=&dateRange=Anytime&totalCount=760&currentItemNo=1">AP Photo/Andrew Harnik</a></span></figcaption></figure><p>In front of the Supreme Court justices on Dec. 5, 2022 was <a href="https://www.scotusblog.com/case-files/cases/303-creative-llc-v-elenis/">303 Creative LLC v. Elenis</a> – a major case regarding LGBTQ rights and free speech.</p>
<p>The petitioner, Colorado-based web designer Lorie Smith, is looking to expand her business, 303 Creative, by making wedding websites for couples that consist of one man and one woman. She wants to refuse wedding website services to same-sex couples planning to marry. Smith also wants to write on the 303 Creative website that she has been called by God to make wedding websites only for mixed-sex couples in order to promote “God’s true story of marriage.” </p>
<p>This would appear to violate the <a href="https://ccrd.colorado.gov/ccrd-home/regulatory-information">Colorado Anti-Discrimination Act</a>, a state law that protects against sexual-orientation discrimination in places that offer goods and services to the public. </p>
<p>Smith claims the law violates her First Amendment free speech rights. The state of Colorado disagrees. The U.S. 10th Circuit Court of Appeals also <a href="https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110553596.pdf">sided with Colorado</a> in July 2021. </p>
<p>During Dec. 5’s hearing, Supreme Court justices posed questions that provide some insight into what they think is legally relevant. The court’s conservative justices – who hold a majority on the bench – appeared sympathetic to Smith’s arguments. </p>
<p>As a <a href="https://clasprofiles.wayne.edu/profile/hf1190">scholar who pays close attention</a> to the Supreme Court’s free speech and LGBTQ civil rights cases, I believe the case could have a significant impact on how federal courts handle cases where free speech rights appear to clash with anti-discrimination laws in the future.</p>
<p>Here are three key recurring themes that played out during the case’s day before the court:</p>
<h2>1. Is this case premature?</h2>
<p>The opening question <a href="https://www.supremecourt.gov/oral_arguments/argument_transcript/2022">in oral arguments</a> came from Justice Clarence Thomas, who asked Smith’s lawyer, Kristen Waggoner, to explain whether or not this case is ripe. In the law, a case is “ripe” when it is ready for litigation. </p>
<p>This question is particularly relevant because Smith does not yet offer wedding websites services and no charges have been brought against her under Colorado’s anti-discrimination law. </p>
<p>Rather, Smith is seeking a pre-enforcement judgment from the court declaring that it would be a violation of the First Amendment for Colorado to compel her to provide wedding websites to same-sex couples were she to provide wedding websites to mixed-sex couples. </p>
<p>This feature of the case creates some complications for the justices because courts often rely on the specific factual details in a dispute to reach a decision. But in this case, there are no actual wedding websites designed by Smith for the court to review.</p>
<p>Instead, Smith provided a mock-up of a sample wedding website. At least some of the justices suggested this didn’t provide enough information. </p>
<p>Justice Elana Kagan, for example, asked several hypothetical questions dealing with specific content that might be provided on a wedding website, and she suggested that how she would rule in a case like Smith’s might change depending on the details.</p>
<p>If the justices conclude that they do not yet have enough information about Smith’s web design services, they may not rule in her favor, while leaving open the possibility that they might side with her in a future case.</p>
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<a href="https://images.theconversation.com/files/499079/original/file-20221205-16-a3e1ag.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Two young men run in front of the Supreme Court building, with guards in white shirts looking on." src="https://images.theconversation.com/files/499079/original/file-20221205-16-a3e1ag.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/499079/original/file-20221205-16-a3e1ag.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=421&fit=crop&dpr=1 600w, https://images.theconversation.com/files/499079/original/file-20221205-16-a3e1ag.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=421&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/499079/original/file-20221205-16-a3e1ag.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=421&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/499079/original/file-20221205-16-a3e1ag.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=529&fit=crop&dpr=1 754w, https://images.theconversation.com/files/499079/original/file-20221205-16-a3e1ag.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=529&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/499079/original/file-20221205-16-a3e1ag.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=529&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Two interns run with a newly released Supreme Court ruling in June 2016 in Washington.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/id/541738758/photo/supreme-court-prepares-to-hand-down-opinions-on-landmark-cases.jpg?s=1024x1024&w=gi&k=20&c=y7RLNmF201ZkZfZfZuOEMS4Oxp5m7YEzifu6XkVjKdM=">Mark Wilson/Getty Images</a></span>
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<h2>2. The status vs. the message</h2>
<p>Many of the justices’ comments suggest that a key question facing the court is whether refusing to make custom wedding websites for same-sex couples is discrimination based on the content of the message or based on someone’s protected status. In this case, that protected status is sexual orientation.</p>
<p>Imagine someone is selling custom-designed welcome mats, for example. If that seller decides that they will only sell welcome mats with messages like “Welcome,” and not others, like “Get off my lawn,” then they are discriminating on the basis of message. This is a constitutionally permissible kind of discrimination.</p>
<p>On the other hand, if that seller decides that they will only sell welcome mats to certain people – for example white people, or heterosexual people – then this is discrimination on the basis of a protected status. Colorado’s discrimination law doesn’t permit this kind of status discrimination. </p>
<p>The question for the justices is, what kind of case is Smith’s?</p>
<p>Justice Neil Gorsuch, one of the conservative majority, suggested that both the defendant and plaintiff agreed that discrimination based on protected status would not be covered by the First Amendment’s free speech provision, but that discrimination based on the content of the message would be constitutional. </p>
<p>Gorsuch’s questions and comments suggest that he views Smith’s refusal to provide wedding websites to same-sex couples as about the message, not the status.</p>
<p>Brian Fletcher, the U.S. deputy solicitor general who argued during the oral arguments in support of Colorado, rejected Gorsuch’s position. Fletcher claimed that discrimination based on sexual orientation is “inextricably intertwined” with a refusal to provide services for same-sex weddings. This would mean refusing to provide a service for same-sex couples is discrimination based primarily on status, not message. </p>
<h2>3. How other groups might be impacted</h2>
<p>Several of the justices raised concerns about how finding for Smith would affect other contexts.</p>
<p>Liberal Justice Sonia Sotomayor, for example, asked Waggoner whether ruling for Smith would permit wedding website designers to turn down requests to make wedding websites for interracial couples or for people with disabilities.</p>
<p>Similarly, Justice Ketanji Brown Jackson asked whether ruling for Smith would then require the court to permit a photographer to take photos only of white children as part of a 1940s-inspired mall Santa photo exhibit, even if that photographer otherwise was willing to take photos of children of color. </p>
<p>Conversely, some justices raised questions about what bad consequences might follow were the court to deny Smith’s request. For example, Justice Amy Coney Barrett questioned whether a gay magazine would be able to accept only paid wedding announcements for same-sex couples during Pride Month if Smith was not given the discretion to decide who to make wedding websites for.</p>
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<a href="https://images.theconversation.com/files/499088/original/file-20221205-22-itbvcc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A person is blocked by a large fake holy bible which is black, and holds a sign that says 'use me not for your bigotry' in front of the Supreme Court" src="https://images.theconversation.com/files/499088/original/file-20221205-22-itbvcc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/499088/original/file-20221205-22-itbvcc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/499088/original/file-20221205-22-itbvcc.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/499088/original/file-20221205-22-itbvcc.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/499088/original/file-20221205-22-itbvcc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/499088/original/file-20221205-22-itbvcc.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/499088/original/file-20221205-22-itbvcc.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">A protester dressed in a Bible costume stands outside the Supreme Court Building during the 303 Creative v. Elenis hearing.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1245382361/photo/suprme-court-303-creative-v-elenis.jpg?s=1024x1024&w=gi&k=20&c=F7IIKhMPlGdWCLigmUqtOS2SzItgrWaFyrAeMRPsi9w=">Bill Clark/CQ-Roll Call, Inc via Getty Images</a></span>
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<h2>What comes next?</h2>
<p>The court’s ruling in this case will likely be announced toward the end of the Supreme Court’s current term, which ends in June 2023. Based on comments and questions from the six conservatives on the nine-seat court, it <a href="https://www.washingtonpost.com/politics/2022/12/05/colorado-creative-supreme-court-lgbtq/">seems likely</a> that the court will side with Smith. But the Supreme Court does not always behave predictably, and some of the more moderate conservative justices, like Chief Justice John Roberts and Justice Brett Kavanaugh, didn’t provide any clear signs during oral arguments about who they intend to side with.</p><img src="https://counter.theconversation.com/content/194804/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mark Satta does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Supreme Court’s initial questions during the 303 Creative LLC v. Elenis opening arguments focused on whether the case might be premature, and what kind of discrimination is at playMark Satta, Assistant Professor of Philosophy, Wayne State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1952982022-12-02T16:32:59Z2022-12-02T16:32:59ZWhy you could have ‘face-ism’ – an extreme tendency to judge people based on their facial features<figure><img src="https://images.theconversation.com/files/497982/original/file-20221129-24-6991vn.jpg?ixlib=rb-1.1.0&rect=16%2C8%2C5486%2C3638&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">We all make judgments based on first impressions but some people take it to extremes</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/hmm-let-me-think-studio-shot-604726298">Cast Of Thousands/Shutterstock</a></span></figcaption></figure><p>You’ve finally got an interview for your dream job. Dozens of applications, dozens of rejection letters – but now you’ve got a shot at the job you really wanted. In you go. Maybe you shake hands with the person who will decide your future, pour a glass of water to steady your nerves. </p>
<p>But what you don’t know is that none of this matters. The second your interviewer set eyes on you, they decided you looked so incompetent and untrustworthy that you would never get this job. Because unfortunately, they are one of a subset of people who new research shows have a disposition to judge extreme personality traits from just a quick view of a person’s face.</p>
<p>Look at the two faces below. Would you hire these people? Who looks more intelligent? Would you trust either person to watch your laptop in a cafe while you pop out to take a call?</p>
<figure class="align-center ">
<img alt="A male face and a female face" src="https://images.theconversation.com/files/498694/original/file-20221202-24-fkdmuf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/498694/original/file-20221202-24-fkdmuf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=338&fit=crop&dpr=1 600w, https://images.theconversation.com/files/498694/original/file-20221202-24-fkdmuf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=338&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/498694/original/file-20221202-24-fkdmuf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=338&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/498694/original/file-20221202-24-fkdmuf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=424&fit=crop&dpr=1 754w, https://images.theconversation.com/files/498694/original/file-20221202-24-fkdmuf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=424&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/498694/original/file-20221202-24-fkdmuf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=424&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">What do you think these people would be like in person?</span>
<span class="attribution"><a class="source" href="https://figshare.com/articles/figure/Young_adult_composite_faces/4055130/1">Lisa DeBruine/figshare</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<p>These <a href="https://figshare.com/articles/figure/Young_adult_composite_faces/4055130/1">images</a> were created by psychologist Lisa DeBruine and colleagues. In fact they are composite images, with each one having been created by combining four different faces. </p>
<p>Even though these faces aren’t real, you may still have made a snap verdict about each composite person’s competence based on their facial expression and structure. We do this all the time. Even though the people in the images don’t exist, we still have projected traits onto them. Making quick judgments about how much we should trust someone, how dominant they are likely to be, or how intelligent they are can be useful estimates of personality. </p>
<p>But this can also, unfortunately, lead to stereotyping – for example, thinking that people with a particular physical characteristic must all be untrustworthy.</p>
<h2>Harsh judgments</h2>
<p><a href="https://royalsocietypublishing.org/doi/pdf/10.1098/rsos.220172">Recent work</a> from researchers in Japan suggests something more worrying; that some of us have a disposition to draw drastic conclusions about the traits and personalities of others based solely on facial appearance.</p>
<p>In a series of online studies with more than 300 participants, Atsunobu Suzuki and colleagues found what they call “face-based trait inferences” (FBTIs). Basically, subjects made a series of personality judgments having taken a brief look at someone’s face. While everyone makes FBTIs to some degree, they found that some people only make <em>extreme</em> judgments (both positive and negative). This held even when the age, sex and ethnicity of participants were controlled for.</p>
<figure class="align-center ">
<img alt="Doubtful HR manager talking to an applicant at job interview" src="https://images.theconversation.com/files/497981/original/file-20221129-19-orst4k.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/497981/original/file-20221129-19-orst4k.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/497981/original/file-20221129-19-orst4k.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/497981/original/file-20221129-19-orst4k.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/497981/original/file-20221129-19-orst4k.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/497981/original/file-20221129-19-orst4k.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/497981/original/file-20221129-19-orst4k.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Let’s hope for her sake he doesn’t have face-ism.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/doubtful-unconvinced-african-american-hr-manager-1368244226">fizkes/Shutterstock</a></span>
</figcaption>
</figure>
<p>Imagine seeing a certain type of face, perhaps with hard eyes and masculine features, and immediately getting the impression the person is <a href="https://www.cell.com/trends/cognitive-sciences/fulltext/S1364-6613(08)00235-0?_returnURL=https%3A%2F%2Flinkinghub.elsevier.com%2Fretrieve%2Fpii%2FS1364661308002350%3Fshowall%3Dtrue">extremely untrustworthy</a>. Or that someone with more feminine features and larger eyes is <a href="https://www.science.org/doi/full/10.1126/science.1110589?casa_token=OsQdYrgCde8AAAAA%3Awzf-CBS2CAGiCxiq4MO0GOrjix5bh4-VRTR3TbnO9Z1qN7m7FHZmnOvxiidVj3An5_kYhKibpet_fNs">incompetent</a>. As Suzuki and colleagues say, this is problematic indeed.</p>
<h2>Face up to the problem</h2>
<p>We already know unconscious bias is rife in decision-making about new hires. A 2018 study sent separate versions of almost identical CVs to apply for 50 different jobs. The only difference was the name on the CV: Adam Smith on one and Ravindra Thalwal on the other. Ravindra <a href="https://employernews.co.uk/employment/study-reveals-discrimination-as-cvs-with-non-british-names-dont-result-in-interviews-except-in-tech-sector/">received about half of the responses</a> compared with his more traditionally British sounding doppelgänger.</p>
<p>One of the leading figures in first impression research, Alexander Todorov, tells us these snap judgments are predictable but usually <a href="https://journals.sagepub.com/doi/10.1177/0956797614532474">inaccurate</a>. And we also know that <a href="https://journals.sagepub.com/doi/abs/10.1177/0963721419835206?casa_token=qH0q5oGS87sAAAAA%3AdtjldZZY7dVnzD-vGF10c-CHKAXqC9ZlzlDF-qf8bB2OEGDyyPuNPzEzsPxQLt_5wFKv5k4IM5Gwpg&journalCode=cdpa">first impressions</a> are usually hard to shake. So this could mean the wrong people are frequently being hired for jobs. </p>
<p>The thing with unconscious bias is you don’t realise you’re doing it most of the time. It’s one of the reasons some companies insist on unconscious bias training (although some people still <a href="https://www.bbc.co.uk/news/uk-politics-54282685">refuse to do it</a>). Unconscious bias training is not some fix-all remedy for discrimination, but even short interventions have been <a href="https://www.pnas.org/doi/10.1073/pnas.1816076116">shown to change people’s attitudes</a>. </p>
<p>You can design unconscious bias training for prejuduices against other physical characteristics such as race, gender and weight. But face-ism seems to be a stereotype that crosses ethnicities, the sexes and physical appearance. </p>
<p>One solution could be to make people aware that they exhibit extreme FBTIs by taking a test similar to the Suzuki experiment. Research <a href="https://psycnet.apa.org/doiLanding?doi=10.1037%2Fxge0000179">has shown</a> that being made aware of your biases can lead to a change of mindset in the short term, but people need extra interventions periodically to make any real behaviour change last.</p>
<p>Maybe just making someone aware that they make extreme personality judgments based on facial appearance will be enough to pull the unconscious bias into the conscious. We’re certainly going to have to try; otherwise you might yourself be a victim of face-ism in the future.</p><img src="https://counter.theconversation.com/content/195298/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Paddy Ross does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>New research shows some people make extreme personality judgments based solely on facial appearancePaddy Ross, Associate Professor, Department of Psychology, Durham UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1908192022-09-30T19:19:45Z2022-09-30T19:19:45ZThe Supreme Court is back in session, with new controversial cases that stand to change many Americans’ lives – here’s what to expect<figure><img src="https://images.theconversation.com/files/487386/original/file-20220929-24-y1wyxk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The Supreme Court is set to start its latest term on Oct. 3, 2022. </span> <span class="attribution"><a class="source" href="https://media.gettyimages.com/photos/two-civilians-walk-past-the-fenced-off-united-states-supreme-court-picture-id1411738675">Robert Nickelsberg/Getty Images</a></span></figcaption></figure><p>Following a <a href="https://theconversation.com/a-seismic-change-has-taken-place-at-the-supreme-court-but-its-not-clear-if-the-shift-is-about-principle-or-party-190815">dramatic year of controversial rulings</a>, the Supreme Court began hearing new cases on Oct. 3, 2022, with a full agenda. </p>
<p>The court <a href="https://theconversation.com/a-revolutionary-ruling-and-not-just-for-abortion-a-supreme-court-scholar-explains-the-impact-of-dobbs-185823">overturned abortion rights</a> and <a href="https://theconversation.com/supreme-court-sweeps-aside-new-yorks-limits-on-carrying-a-gun-raising-second-amendment-rights-to-new-heights-183486">expanded gun rights</a> in June 2022 as the <a href="https://www.yahoo.com/video/conservative-supreme-court-spells-america-095209727.html">new conservative supermajority</a> began to exert its influence. </p>
<p>Some of the court’s most important upcoming cases focus on the <a href="https://www.scotusblog.com/case-files/cases/students-for-fair-admissions-inc-v-president-fellows-of-harvard-college/">future of affirmative action</a>, <a href="https://www.scotusblog.com/case-files/cases/303-creative-llc-v-elenis/">equal treatment of LGBTQ people</a>, and the <a href="https://www.scotusblog.com/case-files/cases/moore-v-harper-2/">control of election laws</a>. The court will hear the cases in the fall and then likely issue rulings in spring 2023. </p>
<p>As a <a href="https://www.springer.com/series/16259">close observer of the court</a>, <a href="https://scholar.google.com/citations?user=-aGQIZwAAAAJ&hl=en">I think</a> this term’s rulings will continue to reject the court’s previous liberal decisions and instead reflect a conservative interpretation of the historical meaning of the Constitution. At least three of those upcoming rulings are likely to profoundly influence people’s everyday lives in the United States. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/487387/original/file-20220929-14-nwwafp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A person walks through brick gates, with a large brick building in the background." src="https://images.theconversation.com/files/487387/original/file-20220929-14-nwwafp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/487387/original/file-20220929-14-nwwafp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=411&fit=crop&dpr=1 600w, https://images.theconversation.com/files/487387/original/file-20220929-14-nwwafp.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=411&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/487387/original/file-20220929-14-nwwafp.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=411&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/487387/original/file-20220929-14-nwwafp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=516&fit=crop&dpr=1 754w, https://images.theconversation.com/files/487387/original/file-20220929-14-nwwafp.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=516&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/487387/original/file-20220929-14-nwwafp.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=516&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">One of the Supreme Court’s most publicized cases this term focuses on whether Harvard University unfairly discriminates against Asian American student applicants.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/photos/scenes-around-harvard-yard-at-harvard-university-in-cambridge-ma-on-picture-id1237976584">Suzanne Kreiter/The Boston Globe via Getty Images</a></span>
</figcaption>
</figure>
<h2>Affirmative action</h2>
<p>College admissions and scholarships can alter the trajectory of a life. </p>
<p>College administrators want diverse student populations but are less clear about which categories – including race, ethnicity, gender, sexual identity and wealth – should influence admission and financial aid decisions. When it comes down to the specifics of which people are underrepresented in higher education, and which are overrepresented, the questions become thorny. </p>
<p>Many different groups feel that they are being mistreated when their specific circumstances and histories are taken into account.</p>
<p>The Supreme Court <a href="https://www.scotusblog.com/case-files/terms/ot2022/">will hear two lawsuits</a> on Oct. 31, 2022, brought by the anti-affirmative action organization <a href="https://studentsforfairadmissions.org/">Students for Fair Admissions</a>. This group argues that Harvard and other schools blatantly discriminate against Asian students. But the claim is a proxy for all other preferences grounded in identity, including those in favor of Black applicants and those disadvantaging whites. </p>
<p>The two cases – one against <a href="https://www.scotusblog.com/case-files/cases/students-for-fair-admissions-inc-v-president-fellows-of-harvard-college/">Harvard</a> and the other against the <a href="https://www.scotusblog.com/case-files/cases/students-for-fair-admissions-inc-v-university-of-north-carolina/">University of North Carolina</a> – address private as well as public institutions. </p>
<p>Nine states currently have laws <a href="https://www.nytimes.com/2022/08/26/us/affirmative-action-admissions-supreme-court.html">that ban</a> affirmative action in college admissions. The extent and focus of existing <a href="https://www.acenet.edu/Policy-Advocacy/Pages/Law-Courts/Diversity-in-Admissions.aspx">diversity policies vary widely</a>. </p>
<p>Universities justifying their diversity policies argue that the <a href="https://constitution.congress.gov/browse/amendment-14/">14th Amendment</a> and its guarantee of “equal protection of the laws” encourage giving an advantage to historically oppressed groups. </p>
<p>The opponents of affirmative action argue that the 14th Amendment was <a href="https://www.supremecourt.gov/DocketPDF/20/20-1199/169941/20210225095525027_Harvard%20Cert%20Petn%20Feb%2025.pdf#page=34">meant to uphold racial neutrality</a>, meaning all individuals should be treated the same, regardless of race. In this view, the Constitution forbids considering race in almost any decisions that influence individual advancement.</p>
<p>The core conflict is whether the <a href="https://www.law.cornell.edu/constitution/amendmentxiv">equal protection clause</a> protects <a href="https://www.thoughtco.com/equity-vs-equality-4767021">equality or equity</a>. </p>
<p>If is it equality – the same treatment of all races, regardless – this supports the argument that universities may not give preferences to applicants of one race over another. </p>
<p>If the 14th Amendment is found to guarantee equity – or trying to create equal outcomes for all by favoring historically disadvantaged groups – this supports the argument that affirmative action policies are constitutionally sound, and perhaps even required in public institutions.</p>
<p>The current court, with a conservative majority, almost certainly favors the argument that the equal protection clause endorses equality, not equity. </p>
<p>In a <a href="https://www.npr.org/sections/codeswitch/2014/04/23/306173835/two-justices-debate-the-doctrine-of-colorblindness">2007 ruling on public high schools</a>, for example, Chief Justice John Roberts wrote that “the way to stop discrimination on the basis of race is to stop discriminating <a href="https://www.supremecourt.gov/opinions/06pdf/05-908.pdf#page=48">on the basis of race</a>.” </p>
<h2>LGBTQ equality versus religious liberty</h2>
<p>Another major case, <a href="https://www.scotusblog.com/case-files/cases/303-creative-llc-v-elenis/">303 Creative v. Elenis</a>, asks the court whether state law can compel a private business to serve LGBTQ clients – or whether the <a href="https://www.law.cornell.edu/constitution/first_amendment">First Amendment</a> protects business owners who violate those laws on religious grounds.</p>
<p>The controversy focuses on a website designer who wants to expand her business to offer personal wedding sites – but not for same-sex couples, as required by <a href="https://one-colorado.org/lgbtq-resources/anti-discrimination-laws-colorado/">Colorado’s nondiscrimination laws</a>.</p>
<p>The case comes close to addressing the long-standing conflict between a person’s free exercise of religion, guaranteed by the First Amendment, and a state’s power to enforce the equal treatment of all citizens. </p>
<p>But the question presented in this case focuses on the website designer’s free speech and artistic expression, rather than the <a href="https://theconversation.com/religious-liberty-has-a-long-and-messy-history-and-there-is-a-reason-americans-feel-strongly-about-it-186613">religious motivation</a> at the heart of the conflict. </p>
<p>The court’s recent history of <a href="https://theconversation.com/religious-liberty-has-a-long-and-messy-history-and-there-is-a-reason-americans-feel-strongly-about-it-186613">supporting religious liberty</a> suggests that the website designer will prevail. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/487388/original/file-20220929-1555-nmk8bl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="People hold up cut-out blue and red maps of states that say things like 'balance power,' and a sign that says 'end gerrymandering now,' outside the Supreme Court." src="https://images.theconversation.com/files/487388/original/file-20220929-1555-nmk8bl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/487388/original/file-20220929-1555-nmk8bl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=401&fit=crop&dpr=1 600w, https://images.theconversation.com/files/487388/original/file-20220929-1555-nmk8bl.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=401&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/487388/original/file-20220929-1555-nmk8bl.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=401&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/487388/original/file-20220929-1555-nmk8bl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/487388/original/file-20220929-1555-nmk8bl.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/487388/original/file-20220929-1555-nmk8bl.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">People protest against gerrymandering outside the Supreme Court in March 2019.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/photos/fair-maps-rally-was-held-in-front-of-the-us-supreme-court-on-tuesday-picture-id1153804265">Sarah L. Voisin/The Washington Post via Getty Images</a></span>
</figcaption>
</figure>
<h2>Who controls election laws</h2>
<p>The third major case this term – <a href="https://www.scotusblog.com/case-files/cases/moore-v-harper-2/">Moore v. Harper</a> – is about the control of election law and what is known as the <a href="https://theconversation.com/the-independent-state-legislature-doctrine-could-reverse-200-years-of-progress-and-take-power-away-from-the-people-186282">independent state legislature theory</a>. </p>
<p>The somewhat arcane question is whether only the U.S. Constitution controls state legislatures’ decisions regarding federal elections rules within their states or whether state constitutions and courts can also oversee the election laws that apply to national elections.</p>
<p>In this case, the <a href="https://www.brennancenter.org/our-work/research-reports/moore-v-harper-explained">court will rule</a> on whether the North Carolina Supreme Court can strike down and replace the Legislature’s congressional map, which the <a href="https://www.politico.com/news/2022/02/04/north-carolina-congressional-map-struck-down-00005974">state court found</a> was gerrymandered in violation of the North Carolina Constitution.</p>
<p>In an atmosphere of political distrust and <a href="https://www.cbsnews.com/news/elections-democracy-opinion-poll-2022-09-04/">accusations of election fraud</a>, the court will determine who controls federal election law within each state. </p>
<p>The constitutional text on this question is admittedly unclear.</p>
<p>Supporters of the independent state legislature theory argue that because the Constitution <a href="https://constitutionallawreporter.com/article-01-section-04/#:%7E:text=Article%201%2C%20Section%204&text=The%20Times%2C%20Places%20and%20Manner,the%20Places%20of%20chusing%20Senators.">states that</a> congressional election rules “shall be prescribed in each State by the Legislature thereof,” this power applies solely to state legislatures.</p>
<p>This interpretation means that election rules are not constrained by state constitutions, which often have additional protections of <a href="https://www.ncsl.org/research/redistricting/free-equal-election-clauses-in-state-constitutions.aspx">“free and equal” elections</a>, enforced by state courts. Instead, only the U.S. Constitution could constrain state legislatures – and only federal courts, including the Supreme Court, could review these decisions. </p>
<p>Critics of the independent state legislature theory argue that even though the U.S. Constitution tasks state legislatures with overseeing election law, ordinary checks and balances that constrain those legislatures still apply. This would mean that other state officials and state courts maintain their usual role in limiting the power of the legislature, which was not meant to be fully independent.</p>
<p>Concerns about independent state legislatures are partly driven by two fears. One is that if legislatures are truly independent, they may <a href="https://www.npr.org/2022/06/30/1107648753/supreme-court-north-carolina-redistricting-independent-state-legislature-theory">impose discriminatory laws that benefit their party</a> – often Republicans at the state level.</p>
<p>The other fear is that Republican legislatures may attempt to <a href="https://www.theatlantic.com/ideas/archive/2022/07/moore-harper-scotus-independent-state-legislature-election-power/670992">alter the final slate of electors</a> in the 2024 presidential election if former President Donald Trump runs and loses the popular vote in states with GOP legislatures. </p>
<p>This case is partially about trust – whether Americans trust state legislatures or state courts to oversee legitimate elections. And <a href="https://www.pewresearch.org/fact-tank/2019/07/22/key-findings-about-americans-declining-trust-in-government-and-each-other/">trust among the American public</a> is in <a href="https://www.gallup.com/workplace/393401/trust-decline-rebuild.aspx">short supply</a>.</p>
<h2>The year at the court</h2>
<p>The outcomes of this term’s cases will deeply influence American lives and values, especially for college applicants, LGBTQ citizens and people with strong religious beliefs. </p>
<p>The state legislature case is the most difficult to understand, and also perhaps the most influential, because it reflects the broader decline of trust in elections and the growing suspicions of fraud along many dimensions. I believe that this case – however resolved – will lower perceptions of the legitimacy of many future election outcomes.</p><img src="https://counter.theconversation.com/content/190819/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Morgan Marietta does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Affirmative action, discrimination against LGBTQ people and election laws are some of the hot-button issues that the Supreme Court will tackle this fall.Morgan Marietta, Professor of Political Science, UMass LowellLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1885162022-08-12T04:31:55Z2022-08-12T04:31:55ZPersonality testing in job applications: what can and can’t employers ask you?<figure><img src="https://images.theconversation.com/files/478858/original/file-20220812-14-2gnx2s.jpg?ixlib=rb-1.1.0&rect=0%2C35%2C6000%2C3952&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Photo by Sora Shimazaki/Pexels</span>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span></figcaption></figure><p>You might have heard of jobseekers being asked to complete a “personality test” as part of a job application, or been through the process yourself. </p>
<p>The questions can range from the innocuous to the deeply personal, with some applicants reporting being asked about their <a href="https://www.abc.net.au/everyday/personality-tests-in-job-applications-explained/100560772">political views</a> in such tests. The Guardian Australia recently <a href="https://www.theguardian.com/australia-news/2022/aug/05/workforce-australia-provider-makes-jobseeker-complete-personality-tests-assessing-zest-and-spirituality">reported</a> one jobseeker was asked to do a personality test assessing “zest” and “spirituality”.</p>
<p>So, what can and can’t prospective employers ask in a personality test?</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1555276468111949825"}"></div></p>
<p>Questions about a person’s age, sex, race, sexual orientation, political opinions or disability are unlawful if the employer <a href="https://www.fairwork.gov.au/employment-conditions/protections-at-work/protection-from-discrimination-at-work">makes a decision based on the response</a>. </p>
<p>But it’s not always easy to prove the employer did actually make a decision based on the response you gave.</p>
<p>For example, say an employer asks a job applicant with a physical disability about what changes they would need in the workplace to accommodate their disability, and then doesn’t hire them because of the costs involved. A court might find that to be <a href="http://www6.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/eoa2010250/s7.html">disability discrimination</a>. </p>
<h2>Anti-discrimination law: it’s complicated</h2>
<p>Blatant examples like this are unlikely, because workplace discrimination has been unlawful for four decades; savvy employers know what not to do.</p>
<p>But what about a recruiter asking if the candidate sees themselves as “lively” or “energetic”? Could this question be used to work out age, and then used to deny an older applicant the job? This <em>could</em> be age discrimination but it’s not easy to prove.</p>
<p>And if someone finds they weren’t hired even though they had the right skills but they’re over 55 and didn’t describe themselves as “energetic”, how will they ever prove age was a factor in the hiring decision?</p>
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Read more:
<a href="https://theconversation.com/sexual-harassment-claims-are-costly-and-complex-can-this-be-fixed-133149">Sexual harassment claims are costly and complex – can this be fixed?</a>
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<p>No wonder people are sceptical about providing information – they don’t know why employers want this information or what they’re going to do with it.</p>
<p>Anti-discrimination laws require the candidate to prove that the reason they weren’t hired was because of their disability or age. Unless the employer told them this or put it in writing, this is very difficult. </p>
<p>Without direct evidence, the candidate will have to ask the court to infer that the reason they weren’t hired was because of their disability or age.</p>
<p>This is a costly exercise, especially if lawyers are involved. Even if the candidate wins, compensation payouts are not windfalls. It’s not surprising so many discrimination claims are <a href="http://classic.austlii.edu.au/au/journals/UTasLawRw/2010/5.html">settled or abandoned</a>.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/478861/original/file-20220812-23636-xfz2om.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/478861/original/file-20220812-23636-xfz2om.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/478861/original/file-20220812-23636-xfz2om.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/478861/original/file-20220812-23636-xfz2om.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/478861/original/file-20220812-23636-xfz2om.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/478861/original/file-20220812-23636-xfz2om.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/478861/original/file-20220812-23636-xfz2om.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/478861/original/file-20220812-23636-xfz2om.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">No wonder people are sceptical about providing information to prospective employers – they don’t know what they’re going to do with it.</span>
<span class="attribution"><span class="source">Photo by Andrea Piacquadio/Pexels</span>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<h2>The Woolworths case</h2>
<p>In Queensland, employers are <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/qld/consol_act/aa1991204/s124.html">prohibited</a> from asking a person a question upon which discrimination could be based.</p>
<p>This was an <a href="https://www.sbs.com.au/news/article/man-awarded-5k-for-woolies-discrimination/lx94rwkxe">issue for Woolworths in 2014</a>, when a man applying to work in a petrol station was asked to provide his gender, date of birth and documentary proof of his right to work in Australia. </p>
<p>He lodged a complaint and the case was heard in the Queensland Civil and Administrative Tribunal.</p>
<p>Woolworths said it needed his date of birth to streamline recruitment, helping determine if he could work in its liquor outlets and his rate of pay.</p>
<p>The tribunal <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/qld/QCAT/2014/601.html?query=">found</a></p>
<blockquote>
<p>that Woolworths’ conduct in requiring a job applicant to provide a date of birth and gender on its online application form contravened <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/qld/consol_act/aa1991204/s9.html">section 9</a> of the <a href="http://www8.austlii.edu.au/cgi-bin/viewdb/au/legis/qld/consol_act/aa1991204/">Anti-Discrimination Act</a>.</p>
</blockquote>
<p>Woolworths could have collected this information in other ways, such as asking if he was aged over 18, and requiring him to show evidence of age if hired. </p>
<p>Woolworths was ordered to pay the man A$5,000. </p>
<p>The tribunal also noted it had, by then, already taken steps to change the online application form, which had addressed all of his concerns.</p>
<p>This case did not involve personality testing, but it does show how employers should be clear about why they’re seeking personal information. </p>
<p>The decision in the Woolworths case came about a year after the man applied for the job, showing how slow and onerous a court or tribunal process can be. Most wouldn’t bother to try.</p>
<h2>It’s about how information is used</h2>
<p>Collecting statistical data about a workforce can be <a href="https://journals.latrobe.edu.au/index.php/law-in-context/article/view/152">useful</a> in addressing discrimination if it’s followed by action when inequality is detected, and those actions are monitored.</p>
<p>Most employers are required to collect data about the gender composition of their workforce and report annually to the <a href="http://www.wgea.gov.au">Workplace Gender Equality Agency</a>.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/why-using-myers-briggs-at-work-might-be-a-terrible-idea-mbti-31178">Why using Myers-Briggs at work Might Be a Terrible Idea (MBTI)</a>
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</em>
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<hr>
<p>If the data show a lack of women in certain jobs, they can take note and actively recruit women, or encourage women to seek promotion.</p>
<p>This won’t be sex discrimination <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/sda1984209/s7d.html">as long as the employer can show</a> their strategy was designed to increase equality.</p><img src="https://counter.theconversation.com/content/188516/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Dominique Allen receives funding from the Victorian Women's Benevolent Trust. </span></em></p>No wonder people are sceptical about providing information – they don’t know why employers want this information or what they’re going to do with it.Dominique Allen, Associate Professor, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1723862021-11-23T06:32:29Z2021-11-23T06:32:29ZThird time lucky? What has changed in the latest draft of the religious discrimination bill?<figure><img src="https://images.theconversation.com/files/433372/original/file-20211123-15-ak3jx1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">AAP/Lukas Coch</span></span></figcaption></figure><p>The Morrison government has finally provided details of the third draft of its religious discrimination bill. This prompted <a href="https://www.smh.com.au/politics/federal/liberal-mps-express-concern-over-religious-freedom-bill-20211123-p59bcw.html">heated discussion</a> in a meeting of Coalition MPs on Tuesday, but Prime Minister Scott Morrison still wants to see the bill introduced in this final sitting fortnight of 2021. </p>
<p>What is the bill trying to do? What has changed since the last time we saw it? And will it be enough to satisfy the critics? </p>
<h2>Why do we have this bill?</h2>
<p>When same-sex marriage was legalised in late 2017, conservative religious groups were promised a “religious freedom” review as a consolation prize. That <a href="https://www.pmc.gov.au/domestic-policy/taskforces-past-domestic-policy-initiatives/religious-freedom-review">review</a>, led by former Liberal MP Phillip Ruddock, found Australia does not have a religious freedom problem, but did recommend new legislative protections against religious discrimination. In <a href="https://www.pm.gov.au/media/government-response-religious-freedom-review">response</a>, in December 2018, the Morrison government promised a Religious Discrimination Act.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/the-debate-about-religious-discrimination-is-back-so-why-do-we-keep-hearing-about-religious-freedom-169643">The debate about religious discrimination is back, so why do we keep hearing about religious 'freedom'?</a>
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<p>Former Attorney-General Christian Porter released a draft religious discrimination bill in <a href="https://www.ag.gov.au/rights-and-protections/consultations/religious-freedom-bills-first-exposure-drafts">late 2019</a> and a <a href="https://www.ag.gov.au/rights-and-protections/consultations/religious-freedom-bills-second-exposure-drafts">second draft</a> in early 2020. </p>
<p>Both were <a href="https://www.theguardian.com/australia-news/2019/nov/30/this-bill-is-friendless-chris-bowen-signals-labor-could-vote-against-religious-freedom-bill">roundly criticised</a>. Human rights groups complained the bill weakened other human rights protections and created a licence to discriminate. Conservative groups complained it did not give adequate protections to people of faith.</p>
<h2>What’s in the third draft?</h2>
<p>Current Attorney-General Michaelia Cash’s third draft is effectively in two parts. </p>
<p>The first part is a legal “shield” protecting people from being discriminated against on the basis of their religion or lack of religion. This isn’t really controversial, as it simply adds religious discrimination to the existing suite of federal race, sex (also covering LGBTQIA+ status), disability and age discrimination laws. All states and territories, other than NSW and South Australia, already have laws prohibiting religious discrimination.</p>
<figure class="align-center ">
<img alt="Protesters at an anti-religious discrimination bill rally in Sydney in 2019." src="https://images.theconversation.com/files/433374/original/file-20211123-19-xoguei.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/433374/original/file-20211123-19-xoguei.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/433374/original/file-20211123-19-xoguei.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/433374/original/file-20211123-19-xoguei.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/433374/original/file-20211123-19-xoguei.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/433374/original/file-20211123-19-xoguei.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/433374/original/file-20211123-19-xoguei.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">LGBTQIA+ advocates say the bill will lead to increased discrimination.</span>
<span class="attribution"><span class="source">Bianca De Marchi/AAP</span></span>
</figcaption>
</figure>
<p>The second part of the bill is a more of a legal “sword” and is more controversial. </p>
<p>Some of the controversial features of earlier drafts, such as the ability of healthcare providers to <a href="https://theconversation.com/governments-religious-discrimination-bill-enshrines-the-right-to-harm-others-in-the-name-of-faith-131206">refuse to provide treatment</a>, are gone. But the current draft still includes a range of provisions overriding federal, state and territory anti-discrimination laws to allow people to be discriminated against.</p>
<h2>The right to be a bigot</h2>
<p>Perhaps the most controversial aspect of the bill is the “statements of belief” provision. This provision overrides overrides every federal, state and territory anti-discrimination law to make “statements of belief” immune from legal consequences under those laws. </p>
<p>Statements of beliefs are things like comments from a boss to a female employee that “women should not hold leadership positions” or comments from a doctor to a patient that “disability is a punishment for sin”.</p>
<p>In order to gain immunity, the statement has to be a religious belief that the person genuinely considers to be in accordance with the doctrines, tenets, beliefs or teachings of that religion. For non-religious people, the statement has to be of a belief that the person genuinely considers to relate to the fact of not holding a religious belief.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/grattan-on-friday-morrison-gives-religious-discrimination-bill-priority-over-national-integrity-commission-172166">Grattan on Friday: Morrison gives religious discrimination bill priority over national integrity commission</a>
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<p>There are three limitations. A statement of belief will not be protected if it is malicious, if a reasonable person would consider the statement would threaten, intimidate, harass or vilify a person or group, or if the statement would promote or encourage the commission of an offence punishable by at least two years’ imprisonment.</p>
<p>This is an extraordinary departure from standard practice in federal anti-discrimination law. Standard practice is to ensure state and territory laws are not overridden.</p>
<p>This provision is bad for everyone. It will protect those who are nasty to Christians, as well as those who are nasty to LGBTQIA+ people, women or people with disabilities.</p>
<p>One key change from previous drafts is statements that intimidate will not be protected. Earlier drafts only excluded “serious intimidation”.</p>
<h2>A mini Folau clause</h2>
<p>Earlier drafts of the bill also included the so-called “<a href="https://www.theguardian.com/world/2021/nov/16/coalition-waters-down-religious-discrimination-bill-by-scrapping-folau-clause">Folau clause</a>”, named after the incident in which Israel Folau parted ways with Rugby Australia as a result of comments he posted on social media about gay people. That clause would have made it unlawful for employers to have codes of conduct that limit a person’s ability to make statements of belief. This provision is gone in the current draft.</p>
<p>But there is still a mini Folau clause. Qualifying bodies (like a medical board) that licence professions and occupations are banned from setting professional conduct rules that prohibit making statements of belief, unless compliance with the rule is an essential requirement of the profession, trade or occupation. </p>
<p>So while an employer can discipline an employee for making a statement of belief, a professional association cannot.</p>
<h2>‘Preferencing’ with hiring</h2>
<p>The bill would mean it is not religious discrimination for bodies such as religious schools, hospitals or aged care facilities to seek to preserve a “religious ethos” among staff by making faith-based decisions in relation to employment. </p>
<p>For example, a Catholic hospital would be able to have a Catholics-only hiring policy. The bill simply requires religious bodies to have publicly available policies if they want to take advantage of this rule.</p>
<p>The bill specifically overrides state and territory anti-discrimination laws to ensure that such “preferencing” in employment is allowed in religious schools, even in those states where this is unlawful. </p>
<h2>Constitutional concerns</h2>
<p>There are some complex constitutional issues with the bill. Here are three of them:</p>
<p>First, federal parliament might not have constitutional power to enact all parts of the bill. The government says it is relying on the “external affairs power”, which allows federal parliament to pass laws implementing treaty obligations, like article 18 of the <a href="https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx">International Covenant on Civil and Political Rights</a> about the right to freedom of thought, conscience and belief.</p>
<p>But <a href="https://undocs.org/A/HRC/37/49">international human rights</a> law is clear that religious freedom cannot be used to interfere with other rights, which is exactly what some parts of the bill do. </p>
<figure class="align-center ">
<img alt="Interior of Catholic cathedral." src="https://images.theconversation.com/files/433375/original/file-20211123-21-1v0dx6m.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/433375/original/file-20211123-21-1v0dx6m.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/433375/original/file-20211123-21-1v0dx6m.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/433375/original/file-20211123-21-1v0dx6m.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/433375/original/file-20211123-21-1v0dx6m.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/433375/original/file-20211123-21-1v0dx6m.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/433375/original/file-20211123-21-1v0dx6m.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Some religious groups have been pushing for a stronger bill, warning they are left vulnerable to claims of discrimination through practising their faith.</span>
<span class="attribution"><span class="source">Tracey Nearmy/AAP</span></span>
</figcaption>
</figure>
<p>Second, overriding state laws throws the state tribunal systems into an unholy mess. State anti-discrimination cases are usually heard by state tribunals, which are quicker and cheaper than courts. But for constitutional reasons, state tribunals cannot consider federal laws. </p>
<p>If the bill passes, many state anti-discrimination cases will now also involve the federal “statement of belief” exemption, which means these cases will need to be heard by a court. Because court cases are very expensive, it is likely many of these cases simply won’t happen and people who have been discriminated against will be left without a remedy.</p>
<p>Third, the “statement of belief” provision overriding state and territory laws appears to change definitions in those laws rather than simply overriding the operation of those laws. While federal parliament has the power to override the operation of state laws, it does not have power to amend or change the content of those laws.</p>
<h2>Where to from here?</h2>
<p>Recent indications are the <a href="https://www.theguardian.com/australia-news/2021/nov/23/scott-morrison-promises-senate-inquiry-to-calm-fears-over-religious-discrimination-bill">bill will be referred</a> to a Senate inquiry – as per the normal process for an important piece of legislation. </p>
<figure class="align-center ">
<img alt="Attorney-General Michaelia Cash." src="https://images.theconversation.com/files/433376/original/file-20211123-27-1ozxaa.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/433376/original/file-20211123-27-1ozxaa.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/433376/original/file-20211123-27-1ozxaa.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/433376/original/file-20211123-27-1ozxaa.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/433376/original/file-20211123-27-1ozxaa.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/433376/original/file-20211123-27-1ozxaa.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/433376/original/file-20211123-27-1ozxaa.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Attorney-General Michaelia Cash has charge of the controversial bill.</span>
<span class="attribution"><span class="source">Mick Tsikas/AAP</span></span>
</figcaption>
</figure>
<p>If that happens, there’s almost no chance of a vote on the bill this year and the heated debate will continue. </p>
<p>But given the ongoing complexities and far-reaching consequences of the bill a proper Senate investigation is essential.</p><img src="https://counter.theconversation.com/content/172386/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Luke Beck is a member of the Australian Labor Party and is on the board of the Rationalist Society of Australia Inc. This article reflects only his personal views.</span></em></p>The Coalition has provided details of the third draft of its controversial bill.Luke Beck, Associate Professor of Constitutional Law, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1691372021-10-05T05:31:47Z2021-10-05T05:31:47ZYour rights under Victoria’s ‘authorised worker’ vaccine mandate: an expert explains<figure><img src="https://images.theconversation.com/files/424608/original/file-20211004-18-yt8384.jpg?ixlib=rb-1.1.0&rect=0%2C243%2C3460%2C1714&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Daniel Pockett/AAP</span></span></figcaption></figure><p>Racing to hit vaccination targets and lift the restrictions making Melbourne
the world’s most locked-down city, the Victorian government has announced plans to
make COVID19 vaccinations mandatory for an estimated
1.25 million of the state’s <a href="https://www.abs.gov.au/statistics/labour/employment-and-unemployment/labour-force-australia/latest-release">3.5 million</a> workers.</p>
<p>The proposed order will apply to all “authorised providers” and “authorised workers” whose work requires contact with others. By October 15 they must show proof they have received or booked their first vaccination, or have a medical exemption from a authorised practitioner. Anyone without an exemption must be fully vaccinated by November 26. </p>
<p>Separate deadlines apply for those subject to Victoria’s existing mandatory vaccination directions covering health care, construction workers and teachers. </p>
<h2>Who are the ‘authorised’ providers and workers?</h2>
<p>An authorised provider or worker is any business or person exempt from the orders to shut or work at home during lockdown.</p>
<p>The “authorised providers” list includes supermarkets, restaurants and cafes providing takeaway services, bottle shops, banks, post offices, news agencies, petrol stations, child care services, schools and mobile pet-grooming services.</p>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/who-cant-have-a-covid-vaccine-and-how-do-i-get-a-medical-exemption-168371">Who can’t have a COVID vaccine and how do I get a medical exemption?</a>
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</em>
</p>
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<p>The “authorised workers” list covers more than 70 categories. It includes health practitioners, emergency workers, essential services workers, those who work in courts or the administration of justice, manufacturing, public transport, professional athletes, zoo workers, faith leaders, actors and parliamentarians. </p>
<p>In short, if your work can’t be done from home, your job is <a href="https://www.coronavirus.vic.gov.au/authorised-provider-and-authorised-worker-list">most likely on the list</a>.</p>
<h2>Will there be any exemptions?</h2>
<p>The mandate is yet to be finalised, so the precise scope of
exemptions is unclear. </p>
<p>However, the government has said
there will be an exemption for those unable to be vaccinated on medical grounds, as <a href="https://www.health.gov.au/resources/publications/atagi-expanded-guidance-on-temporary-medical-exemptions-for-covid-19-vaccines">determined</a> by the Australian Technical Advisory Group on Immunisation. </p>
<p>The list of accepted medical reasons is short. Any exemption must be certified by an authorised medical practitioner.</p>
<h2>How will the mandate become law?</h2>
<p>The state government has the power to make public health directions including mandating vaccines under Victoria’s <a href="https://www.legislation.vic.gov.au/in-force/acts/public-health-and-wellbeing-act-2008/043">Public Health and Wellbeing Act</a> and associated state-of-emergency powers. </p>
<p>It is the same mechanism by which vaccinations for sectors such as construction have been mandated.</p>
<p>Prior to the COVID pandemic, similar provisions have enabled the Department of Health to direct hospitals and health providers to require workers to be vaccinated against diseases such as influenza and hepatitis B. </p>
<p>This was achieved through amendments to Victoria’s <a href="https://www.legislation.vic.gov.au/in-force/acts/health-services-act-1988/173">Health Services Act</a> and <a href="https://www.legislation.vic.gov.au/in-force/acts/health-services-act-1988/173">Ambulance Services Act.</a> </p>
<h2>Doesn’t this conflict with the Fair Work Ombudsman’s advice?</h2>
<p>No. The Fair Work Ombudsman has previously issued guidance on the conditions that make it “lawful and reasonable” for an individual employer to require that employees be vaccinated. </p>
<p>That guidance includes “tiers” of work to help assess if vaccination was justifiable. But these aren’t relevant if a direct law – in this case a public health direction – mandates vaccination.</p>
<h2>Is there any legal recourse?</h2>
<p>There is a legal challenge currently before Victoria’s Supreme
Court. This has been lodged by couple Belinda and Jack Cetnar. Their core
argument is that mandates are discriminatory and contravene human
rights. </p>
<p>One difference between this challenge and those being made in the <a href="https://www.supremecourt.justice.nsw.gov.au/Pages/sco2_caseofinterest/Casesofinterest.aspx">NSW Supreme Court</a> against the NSW government’s vaccine mandates is that Victoria has a <a href="https://www.humanrights.vic.gov.au/legal-and-policy/victorias-human-rights-laws/the-charter/">Charter of Human Rights and Responsibilities</a>. </p>
<p>At the hearing setting the trial date for the Cetnars’ challenge, Justice Melinda Richards noted the Cetnars had grounds to argue their case under the charter but queried other arguments they presented in their written documentation. </p>
<p>These included the mandate contravening the Commonwealth Biosecurity Act and the Nuremberg Code. </p>
<h2>So what about discrimination and human rights?</h2>
<p>Vaccination status is not a prohibited ground under discrimination law, so the mandate cannot be challenged as unlawful discrimination on this basis. </p>
<p>Adverse treatment on the basis of health or disability may amount to unlawful discrimination in other circumstances, but the new rules allow for this. </p>
<p>Human rights law allows for limitations on human rights where necessary to protect public health and the fundamental right – to life. However, such restrictions must be necessary and proportionate to the risk and balanced against individual rights.</p>
<p>This principle is reflected in Victoria’s <a href="https://www.legislation.vic.gov.au/in-force/acts/charter-human-rights-and-responsibilities-act-2006/014">Charter of Human Rights and Responsibilities</a>, and in the position of bodies such as the World Health Organization.</p>
<p>In December 2020, at press conference, WHO’s immunisation director Kate O'Brien said the organisation <a href="https://www.who.int/publications/m/item/covid-19-virtual-press-conference-transcript---7-december-2020">didn’t favour vaccine mandates</a>. </p>
<p>However, a WHO policy brief <a href="https://www.who.int/publications/i/item/WHO-2019-nCoV-Policy-brief-Mandatory-vaccination-2021.1">published in April</a> notes vaccine mandates “can be ethically justified, as they are crucial to protecting the health and well-being of the public”. This comes with important caveats:</p>
<blockquote>
<p>While interfering with individual liberty does not in itself make a policy intervention unjustified, such policies raise a number of ethical considerations and concerns and should be justified by advancing another valuable social goal, like protecting public health.</p>
</blockquote>
<p>Ultimately it may be necessary for the courts to determine whether the new
rules strike an appropriate balance. </p>
<p>However, it seems unlikely any
court will overturn such a mandate, given vaccination is
effective, the mandate will be temporary, apply only to onsite
work, provide medical exemptions, will alleviate pressure on the
health system and help ease existing restrictions (which also
infringe on individual liberty).</p>
<h2>Who will be responsible for enforcing these rules?</h2>
<p>Workers covered by the proposed mandate will be required when working to carry an authorised worker permit confirming they have been vaccinated. Businesses will be responsible for issuing these permits, and for ensuring all employees onsite have a permit. </p>
<p>If an authorised officer attends a workplace and finds workers without a valid permit, both employers and employees can be fined.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/what-are-the-protests-against-victorias-construction-union-all-about-168367">What are the protests against Victoria's construction union all about?</a>
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<p>The penalties are the same as other <a href="https://online.fines.vic.gov.au/News/Covid-restrictions-and-penalties-in-Victoria">breaches of restrictions or directions</a>. On-the-spot fines of up to $1,817 can be issued to individuals and up to $10,904 for businesses for not having a permit. </p>
<p>A court can impose a fine of up to $21,808 on individuals and $109,044 on employer for issuing worker permit to an employee not meeting the permit requirements.</p>
<hr>
<p><em>Correction: this article has been updated to clarify the vaccine mandate has not yet been passed into law.</em></p><img src="https://counter.theconversation.com/content/169137/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Giuseppe Carabetta does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Victoria has mandated COVID vaccinations for an estimated 1.25 million workers. Employment law expert Giuseppe Carabetta explains the legalities.Giuseppe Carabetta, Senior Lecturer, Sydney University Business School, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1667532021-09-03T02:12:40Z2021-09-03T02:12:40ZNSW’s anti-discrimination law is confusing and outdated. Why is it lagging behind the country on reform?<p>An anti-discrimination law is, in effect, a code of conduct. An employer, an HR manager, a school principal, a shopkeeper, or hotelier needs to be able to pick up the act and get a good idea of what their obligations and duties are. </p>
<p>Similarly, a worker or student or customer needs to be able to pick up the act and understand how they are protected.</p>
<p>NSW’s outdated <a href="https://legislation.nsw.gov.au/view/html/inforce/current/act-1977-048/lh">Anti-Discrimination Act</a> fails as a code of conduct. Passed in 1977, it is cumbersome, wordy, opaque, repetitive and confusing. </p>
<p>But it need not be. The same laws in <a href="https://www.legislation.qld.gov.au/view/html/inforce/current/act-1991-085">Queensland</a>, the <a href="https://www.legislation.act.gov.au/a/1991-81/">ACT</a>, <a href="https://www.legislation.vic.gov.au/in-force/acts/equal-opportunity-act-2010/021">Victoria</a> and <a href="https://www.legislation.tas.gov.au/view/html/inforce/current/act-1998-046">Tasmania</a> have wider scope, with fewer words in a more accessible form.</p>
<p>There is growing impatience with the inaction in NSW. Community groups are <a href="https://www.theguardian.com/australia-news/2021/aug/06/advocates-say-nsw-anti-discrimination-laws-are-failing-vulnerable">calling on the NSW attorney-general</a> to review the outdated act. A recent <a href="https://piac.asn.au/2021/08/06/leader-to-laggard-the-case-for-modernising-the-nsw-anti%25E2%2580%2590discrimination-act/">report</a> by the Public Interest Advocacy Centre also makes a case for how poorly the people of NSW are served by this antiquated law.</p>
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<h2>Shrinking budget and unfilled positions</h2>
<p>In the past decade, <a href="https://antidiscrimination.nsw.gov.au/">Anti-Discrimination NSW</a>, the statutory agency with oversight of the act, has had its budget reduced by 10% in dollar terms (in effect a 24% cut in real terms). A recurring statement in its <a href="https://antidiscrimination.nsw.gov.au/anti-discrimination-nsw/about-us/reports-and-submissions/annual-reports.html">annual reports</a> has been </p>
<blockquote>
<p>staff costs were controlled by keeping several positions vacant during the year.</p>
</blockquote>
<p>The agency has only a part-time head, but for two of the past ten years that position was vacant. There have also been unfilled <a href="https://antidiscrimination.nsw.gov.au/anti-discrimination-nsw/about-us/what-we-do/adnsw-board.html">board positions</a> in five of the past 10 years.</p>
<h2>Lots of mini acts all strung together</h2>
<p>The NSW act is in the same state of neglect. Considered state-of-the-art 40 years ago, the law today reads like a lot of mini anti-discrimination acts strung together. </p>
<p>First, it defines <a href="https://legislation.nsw.gov.au/view/html/inforce/current/act-1977-048#pt.2">race discrimination</a>, sets out each area of life where race discrimination is unlawful, and sets out the exceptions. </p>
<p>Then it defines <a href="https://legislation.nsw.gov.au/view/html/inforce/current/act-1977-048#pt.3">sex discrimination</a>, sets out each area of life where sex discrimination is unlawful, and sets out the exceptions. </p>
<p>It goes on like this, with regard to transgender people, marital status, disability, carer’s responsibilities, homosexuality, and age. Each time an additional attribute is added, a new part of the act is wedged in among the others.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/we-need-to-talk-about-discrimination-law-and-why-a-thoughtful-approach-to-reform-is-so-important-129697">We need to talk about discrimination law and why a thoughtful approach to reform is so important</a>
</strong>
</em>
</p>
<hr>
<p>Along the way, other protections have been slotted in, such as for <a href="https://legislation.nsw.gov.au/view/html/inforce/current/act-1977-048#pt.2-div.3A">vilification</a>, <a href="https://legislation.nsw.gov.au/view/html/inforce/current/act-1977-048#pt.2A">harassment</a> and <a href="https://legislation.nsw.gov.au/view/html/inforce/current/act-1977-048#pt.4E">compulsory retirement</a>.</p>
<p>Compare this to the <a href="https://www.legislation.vic.gov.au/in-force/acts/equal-opportunity-act-2010/021">Victorian Equal Opportunity Act</a>, which is not a series of mini-acts but a single coherent statement of what discrimination is, who is protected, the areas covered, and the exceptions. </p>
<p>A law such as this must also be inclusive. But terms such as “homosexuality” and “transgender” in the NSW Act are limited in their scope. The absence of protection for gender identity, sexual orientation, political and religious belief, parental status, and industrial activity illustrates how far the NSW act is behind contemporary values.</p>
<h2>Lacking a positive duty to ensure equality</h2>
<p>Perhaps most significantly, the NSW act remains simply a law that prohibits discrimination — it does not actively promote measures to secure equality, as laws in other jurisdictions do. </p>
<p>The anti-discrimination acts in <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/eoa2010250/s15.html">Victoria</a> and <a href="https://www.legislation.gov.uk/ukpga/2010/15/part/11">the UK</a>, for instance, require that measures actively be taken to eliminate discrimination and harassment. The <a href="https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Education_and_Employment/RespectatWork/Report">proposed sexual harassment amendments to the federal Sex Discrimination Act</a> do the same.</p>
<p>Nor does the NSW law go beyond prohibiting disability discrimination and require
<a href="https://www.legislation.gov.au/Details/C2018C00125/Html/Text#_Toc511911512">steps be taken to make reasonable adjustments</a> to accommodate a person’s disability. This is how other states’ laws work.</p>
<p>Without a positive duty to both eliminate discrimination and harassment and make reasonable adjustments to address inequality, the NSW act fails its essential purpose — to help our society towards equality.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/how-australias-discrimination-laws-and-public-health-campaigns-perpetuate-fat-stigma-80471">How Australia's discrimination laws and public health campaigns perpetuate fat stigma</a>
</strong>
</em>
</p>
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<h2>How can it be fixed?</h2>
<p>The NSW act is not amenable to a quick fix. It is already a barnacle-encrusted, gap-plugged vessel. </p>
<p>By my count, the law has been subject to <a href="https://legislation.nsw.gov.au/view/html/inforce/current/act-1977-048/lh#amend-list">more than 800 amendments, insertions and deletions</a> over the years, in 88 different amending acts. </p>
<p>The numbering of inserted sections has become ridiculous, such as s49ZYW(2)(a), which specifies when section s49ZYW(1) doesn’t apply. That may be fun for lawyers, but it’s no fun for anyone who wants to know their duties and rights.</p>
<p>It would be unconscionable to tack yet another piece onto the existing act. The people of NSW, instead, need an new and contemporary equality law.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/why-mandatory-retirement-ages-should-be-a-thing-of-the-past-94484">Why mandatory retirement ages should be a thing of the past</a>
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</em>
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<p>So how might we get there? There are well-established and successful reform processes around Australia and internationally to draw from. </p>
<p>Reform in the UK began with an independent report, two public inquiries, and then extensive consultations with the public, specialists, stakeholders and interest groups. This iterative and collaborative process resulted in the <a href="https://www.legislation.gov.uk/ukpga/2010/15/contents">Equality Act 2010 (UK)</a>, described in the <a href="https://www.gov.uk/government/publications/framework-for-a-fairer-future-the-equality-bill-june-2008">Discrimination Law Review</a> as “harmonising and simplifying the law” and “modernising the law”.</p>
<p>Victoria set about a similarly rigorous process to modernise its law, which had been in much the same form <a href="https://www.humanrights.vic.gov.au/about-us/our-history/equal-opportunity-timeline/">for over 30 years</a>. The government commissioned an independent public consultation and launched a parliamentary committee inquiry, resulting in its 2010 <a href="https://www.legislation.vic.gov.au/in-force/acts/equal-opportunity-act-2010/021">Equal Opportunity Act</a>. A similar process led to 2014 <a href="https://justice.act.gov.au/lrac-inquiry-scope-and-operation-discrimination-act-1991">reforms in the ACT</a>.</p>
<p>Updating discrimination law is a perennial task, responding to social change. It is happening now in Western Australia, where the Law Reform Commission is <a href="https://www.wa.gov.au/government/publications/project-111-review-of-the-equal-opportunity-act-1984-wa">reviewing</a> the 1984 Equal Opportunity Act, and in Queensland, where the Human Rights Commission is <a href="https://www.qhrc.qld.gov.au/law-reform/about-the-review">reviewing</a> the 1991 Anti-Discrimination Act. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1432874887652130821"}"></div></p>
<p>The Northern Territory’s <a href="https://justice.nt.gov.au/attorney-general-and-justice/law-reform-reviews/published-reports-outcomes-and-historical-consultations/historical/2018/discussion-paper-modernisation-of-the-anti-discrimination-act">review</a>, meanwhile, is done and awaiting report.</p>
<p>Clearly, there are contemporary models in Australia that show the way for NSW to follow. It is not a brave step for NSW to commit to contemporary measures to secure non-discrimination and equality. We just need a government that cares.</p><img src="https://counter.theconversation.com/content/166753/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Simon Rice is a member of the Australian Discrimination Law Experts Group</span></em></p>The NSW Anti-Discrimination Act is in a state of neglect. Considered state-of-the-art 40 years ago, the law today reads like a lot of mini anti-discrimination acts strung together.Simon Rice, Professor of Law; Director of Professional and Community Engagement, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1601082021-05-03T13:55:15Z2021-05-03T13:55:15ZKenya has its first female chief justice: why this matters<figure><img src="https://images.theconversation.com/files/398097/original/file-20210430-18-1pamcww.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Kenya's Chief Justice-designate Martha Koome responds to questions during her job interview.</span> <span class="attribution"><span class="source">Judiciary.go.ke</span></span></figcaption></figure><p>If parliament formally approves the <a href="https://www.businessdailyafrica.com/bd/economy/ngatia-claims-rigging-in-martha-koome-s-nomination-as-next-chief-justice-3378710">nomination</a> of Justice Martha Koome as the next Chief Justice of Kenya and president of the Supreme Court, as is widely expected, she will become the first woman to occupy the seat in Kenya’s history. Justice Martha Koome topped nine other candidates – including two other women – for the job during <a href="https://nation.africa/kenya/news/chief-justice-interviews-begin-with-judge-said-juma-chitembwe--3358748">interviews</a> carried out by the Judicial Service Commission between 10 April and 23 April 2021.</p>
<p>Justice Martha Koome will become the third Chief Justice under the 2010 constitution. She succeeds Chief Justice Maraga who <a href="https://www.theafricareport.com/54868/kenyas-trail-blazing-chief-justice-david-maraga-set-to-retire/">retired</a> on 12 January 2021 upon reaching the age of 70. Chief Justice Maraga will be remembered for his role in the Supreme Court bench that overturned President Uhuru Kenyatta’s election in 2017 over irregularities.</p>
<p>Justice Martha Koome’s nomination is a historic moment for Kenyan women, who have been missing from higher ranking courts until recent years. Women in the judiciary were initially <a href="https://books.google.co.uk/books?hl=en&lr=&id=tIrbBAAAQBAJ&oi=fnd&pg=PR1&dq=winfred+kamau+women+judges+kenya&ots=WQqTvzeOBn&sig=XjKDutY2BlX_k0De8ltosZjR6mU&redir_esc=y#v=onepage&q=winfred%20kamau%20women%20judges%20kenya&f=false">concentrated</a> in magistrates courts. This excluded them from high ranking cases that shaped the legal principles to be followed, often for years to come. </p>
<p>The first woman judge joined the High Court only in 1993. It was not until 2003 that the first woman judge joined the Court of Appeal, then the highest court in the land. </p>
<p>Since then, there has been progress in the number of women joining the judiciary and rising through the ranks, particularly after the promulgation of Kenya’s <a href="https://www.bbc.com/news/world-africa-11103008">new constitution</a> in 2010. This was largely due to the application of the two-thirds gender principle found in the new constitution. There have been divergent views on whether this threshold applies to each court, or – as the Judicial Service Commission insists – the judiciary as a whole.</p>
<p>While there was no female appeal court judge in <a href="http://kenyalaw.org/kl/fileadmin/pdfdownloads/Final_Report_of_the_Task_Force_on_Judicial_Reforms.pdf">2010</a>, they constituted seven of the 22 Court of Appeal judges by <a href="https://www.judiciary.go.ke/download/state-of-the-judiciary-and-the-administration-of-justice-report-2016-2017/">2017</a> (32%). The proportion grew from 40% to 42% in the High Court and from 32% to 40% in all superior courts during the same period. Moreover, the proportion of women magistrates jumped from 37% to a whopping 78%. </p>
<p>The Supreme Court has only had two women justices out of seven since its establishment in 2011. This still falls short of the one-third minimum threshold required under Kenya’s constitution for all public institutions. This is about to change with the ascendance of a woman judge to the top of the tier, increasing the number to three.</p>
<h2>Why women judges matter</h2>
<p>There is a proliferation of studies that show that having women judges really matters. These studies are framed on two justifications: first on grounds of <a href="https://onlinelibrary.wiley.com/doi/abs/10.1111/j.1467-6478.2008.00448.x">legitimacy</a>. On this count, judiciaries must democratically represent and mirror the population characteristics in terms of gender, race, class, among others. </p>
<p>The second justification is the difference that women judges will make for gender justice. Some researchers posit that they bring in an essentially female perspective to judging and law that is more <a href="https://www.jstor.org/stable/1072973?seq=1">“motherly” </a>, or <a href="https://heinonline.org/HOL/LandingPage?handle=hein.journals/lieq4&div=19&id=&page=">“womanly”</a>. Others argue that women judges bring their unique life experiences to judging that will <a href="https://heinonline.org/HOL/LandingPage?handle=hein.journals/berkwolj1&div=6&id=&page=">challenge laws that reflect male concerns</a>. Still others believe that women judges will <a href="https://link.springer.com/article/10.1007%2Fs10691-008-9090-5">sensitise and educate male judges</a> about gender stereotypes, myths and male bias reflected in their judgments.</p>
<p>My own recent <a href="https://journals.sagepub.com/doi/full/10.1177/09646639211007905">research</a> in the Kenyan context contributes to these existing debates about why women judges matter. I examined their collective efforts such as the Equality of Jurisprudence Programme run by the Kenya Women Judges Association. The association was founded in 1993 by Justices Effie Owuor and Joyce Aluoch, who have been joined by many more judges over the years, including Martha Koome.</p>
<p>My research found that these pioneer women judges – while they themselves were not in the Court of Appeal – had an indirect impact in those courts. This they achieved by training their male peers in the Court of Appeal and High Court to apply international human rights instruments – such as the Convention on the Elimination of Discrimination Against Women. </p>
<p>These international human rights instruments were not yet infused into Kenyan laws at the time. Their efforts <a href="http://kenyalaw.org/caselaw/cases/view/28770">bore fruit</a> particularly in matrimonial property disputes at a time when the Kenyan Constitution sanctioned discrimination against women. </p>
<p>There was a setback later after an Appeal bench <a href="http://kenyalaw.org/caselaw/cases/view/41460">reversed</a> the precedent in 2007, requiring wives to prove direct contribution to matrimonial property. This was before the 2010 Constitution. Since then, the Constitution and the 2013 Matrimonial Property Act both recognise the equality of parties to a marriage, and the value of care, domestic and farm work as non-monetary contribution to marriage. </p>
<p>Koome has been an active and long-standing member of the <a href="https://www.iawjkenyachapter.org/">International Association of Women Judges – Kenya Chapter</a>,
which focuses on access to justice for women and children.
She was the <a href="https://thecommonwealth.org/media/news/un-recognition-commonwealth-child-and-women%E2%80%99s-rights-champion">UN Person of the Year 2020</a> runner up, recognised for her advocacy work to improve the rights of women and children in the justice system.</p>
<p>Doubtlessly, her ascendance to the role of Chief Justice raises hope and expectations among many for a better world for women and children. </p>
<h2>Looking ahead</h2>
<p>Chief Justice Martha Koome will be immediately confronted with a <a href="https://www.linkedin.com/pulse/state-house-judiciary-stand-off-risks-kenyan-ir%C5%A9ng%C5%A9-houghton/?articleId=6680774613745586177">standoff</a> between the judiciary and the executive arms of government that has stalled the appointment of 41 judges of the High Court and Court of Appeal. She also faces a huge backlog of cases built up over years. </p>
<p>She will be the President of a Supreme Court and head of a judiciary that has been perceived as conservative in a few serious matters of constitutional and public importance. These include the implementation of the <a href="https://heinonline.org/HOL/LandingPage?handle=hein.journals/easfrilaj2018&div=10&id=&page=">two thirds gender principle</a> and electoral <a href="https://www.tandfonline.com/doi/abs/10.1080/17531055.2015.1029296">fairness</a> among others. </p>
<p>Internally, the new chief justice is expected to extend ongoing reforms. Most importantly, she will continue the <a href="https://www.judiciary.go.ke/judiciary-transformation-frameworkjtf-2012-2016/">reforms</a> to rid the judiciary of corruption, inefficiencies leading to case backlogs while embracing ICT in the justice system. All these are intended to enhance access to justice and win the people’s trust in the judiciary.</p><img src="https://counter.theconversation.com/content/160108/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Martha Gayoye does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Justice Martha Koome’s ascendance to the role of Chief Justice raises hope and expectations among many for a better world for women and children.Martha Gayoye, Teaching Fellow, University of WarwickLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1329322020-03-24T12:15:50Z2020-03-24T12:15:50ZWorkplace age discrimination could become even harder to prove in court<figure><img src="https://images.theconversation.com/files/320463/original/file-20200313-115106-1pcy9tg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Over 15,000 workers filed age discrimination claims in 2019.</span> <span class="attribution"><span class="source">Aleutie/Shutterstock.com</span></span></figcaption></figure><p>Age discrimination remains one of the greatest vulnerabilities that American workers face. </p>
<p>A 2018 <a href="https://www.aarp.org/research/topics/economics/info-2018/multicultural-work-jobs.html">AARP study</a> of adults age 45 and older found that more than 60% said they had seen age discrimination in their workplace or experienced it themselves. </p>
<p>While <a href="https://rowman.com/ISBN/9780742548084/The-Face-of-Discrimination-How-Race-and-Gender-Impact-Work-and-Home-Lives">most incidents go unreported</a>, over <a href="https://www.eeoc.gov/eeoc/statistics/enforcement/adea.cfm">15,000 workers</a> filed a claim of workplace age discrimination with the Equal Employment Opportunity Commission in 2019 alone. This makes ageism one of the most commonly reported forms of workplace discrimination, just below race (23,976 cases) and sex discrimination (23,532 cases), and above cases pertaining to national origin (7,009 cases) and religion (2,725 cases).</p>
<p>Along with a general reluctance to report their employers for unfair treatment, aging workers face notable obstacles when and if they do decide to move forward with legal action. Cases, for instance, rarely go to trial, and studies suggest that when they do <a href="https://ssrn.com/abstract=1293784">employers are twice as likely to win</a>, given the difficulties victims face in proving their claims. </p>
<p>And now, the Trump administration is trying to further curtail the protections afforded to aging workers.</p>
<h2>To the courts</h2>
<p>On Jan. 15, the Supreme Court heard the age discrimination case <a href="https://www.scotusblog.com/case-files/cases/babb-v-wilkie/">Babb v. Wilkie</a>.</p>
<p><a href="https://www.oyez.org/cases/2019/18-882">Noris Babb</a> worked as a pharmacist at a Veterans Affairs Medical Center in Florida, where she helped to develop a program for older veterans. The VA later developed a nationwide plan based on the one that Babb’s team initially developed. </p>
<p>Babb and other female co-workers, each of whom was over 50, applied for promotion and training opportunities as well as clinical positions, yet were denied the opportunity to advance. Instead, the VA promoted two other women – both under the age of 40. </p>
<p>The <a href="https://www.eeoc.gov/laws/statutes/adea.cfm">Age Discrimination in Employment Act</a> requires the government to make employment decisions “free from any” age discrimination. The EEOC has long held that this language means that age should not be even a contributing factor for determining workplace decisions in federal jobs. </p>
<p>Babb filed charges of gender-plus-age discrimination, but the court sided with the VA. Babb challenged that decision, arguing that the court had relied on an overly stringent standard for demonstrating discrimination. </p>
<p>The case then made its way up to the Supreme Court, where the Trump administration argued that, to be protected by the Age Discrimination in Employment Act, federal workers must prove that age is the singular motivating factor in an employment decision – a standard referred to as “but for” causation. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/320202/original/file-20200312-111268-1ioutbe.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/320202/original/file-20200312-111268-1ioutbe.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/320202/original/file-20200312-111268-1ioutbe.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=338&fit=crop&dpr=1 600w, https://images.theconversation.com/files/320202/original/file-20200312-111268-1ioutbe.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=338&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/320202/original/file-20200312-111268-1ioutbe.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=338&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/320202/original/file-20200312-111268-1ioutbe.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=424&fit=crop&dpr=1 754w, https://images.theconversation.com/files/320202/original/file-20200312-111268-1ioutbe.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=424&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/320202/original/file-20200312-111268-1ioutbe.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=424&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">In January, the U.S. Supreme Court heard a case on age discrimination.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/washington-dc-oct-3-2016-equal-496281247">bakdc/Shutterstock.com</a></span>
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<h2>Proof of discrimination</h2>
<p><a href="https://www.press.uchicago.edu/ucp/books/book/chicago/R/bo26176123.html">Nearly three decades of research on workplace discrimination</a> show that it is already extraordinarily difficult to prove that employment decisions are discriminatory. </p>
<p>Our own work, <a href="https://scholar.google.com/citations?user=JQ7zUUcAAAAJ&hl=en&oi=ao">analyzing EEOC case histories</a> and <a href="https://scholar.google.com/citations?user=PEwucWsAAAAJ&hl=en&authuser=1">interviewing workers</a> about their experiences of mistreatment and discrimination, provides insight into why. </p>
<p>Many employment decisions are made behind closed doors. This understandably creates situations in which a worker is left wondering why they were denied a job, not promoted or even terminated. Identifying the cause of one’s mistreatment is often difficult. </p>
<p>To complicate matters, <a href="https://doi.org/10.1353/sof.2007.0109">employers rarely, if ever, own up</a> to their discriminatory actions when accused. Rather, they often point to alleged violations of company policy by the employee in question. Or, they couch their discriminatory actions as the result of <a href="https://doi.org/10.1525/ctx.2010.9.1.16">smart and profitable decision-making</a>, company downsizing or business restructuring. </p>
<p>If the Trump administration is successful in arguing that the Age Discrimination in Employment Act applies only when age is the solitary factor in a federal employer’s conduct, the burden of proof for those encountering age discrimination will raise to an even higher level. </p>
<p>With the Trump administration’s stricter interpretation of the Age Discrimination in Employment Act, almost any employer counterargument would effectively remove the possibility that aging workers would be protected. </p>
<p>This is further complicated by the fact that, in about 50% of age discrimination cases and 80% of all EEOC cases involving denial of promotion, plaintiffs <a href="https://ssrn.com/abstract=1293784">make multiple claims within a single case</a>. <a href="https://doi.org/10.1111/j.1540-5893.2011.00463.x">Research shows</a> that the odds of legal victory are cut in half for charging parties who make multiple claims. </p>
<h2>Negative effects</h2>
<p>Research shows that age discrimination is bad for workers, bad for families and bad for the United States as a whole.</p>
<p>Discrimination takes a <a href="https://doi.org/10.1177/0022146518767407">toll on the health</a> and <a href="http://dx.doi.org/10.1080/13607863.2014.962007">well-being</a> of all workers. It decreases workplace morale and <a href="https://www.palgrave.com/gp/book/9780230240933">workplace productivity</a>. Discrimination also artificially <a href="https://www.weforum.org/agenda/2015/03/why-discrimination-hurts-competitiveness/">limits the pool of competent and talented workers</a> stifling economic growth. </p>
<p>Moreover, when workers are unfairly denied employment, unjustly excluded from promotion and training opportunities, or terminated in a discriminatory fashion, the <a href="https://journals.sagepub.com/doi/pdf/10.1525/ctx.2010.9.1.16">possible negative impacts</a> also spill over to family members, spouses and children. </p>
<p>The U.S. population is aging, and so is the <a href="https://www.census.gov/library/stories/2018/04/aging-workforce.html">U.S. workforce</a>. For more than 50 years, the Age Discrimination in Employment Act has been the primary mechanism for workers across the nation to contest ageist treatment at the hands of employers. </p>
<p>The current push to interpret the Age Discrimination in Employment Act as strictly requiring “but for” causation will raise the burden of proof for victims to a nearly impossible level. It will also make it difficult for aging federal workers to maintain and succeed in their jobs.</p>
<p><em>This article has been updated to correct the number of sex discrimination cases.</em></p>
<p>[<em>You’re smart and curious about the world. So are The Conversation’s authors and editors.</em> <a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=youresmart">You can read us daily by subscribing to our newsletter</a>.]</p><img src="https://counter.theconversation.com/content/132932/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Plaintiffs in age discrimination cases often find it difficult to prove their cases. Now, a Supreme Court case could further undermine workplace protections available to victims.Catherine Harnois, Professor of Sociology, Wake Forest UniversityVincent Roscigno, Professor of Sociology, The Ohio State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1296972020-02-05T01:32:05Z2020-02-05T01:32:05ZWe need to talk about discrimination law and why a thoughtful approach to reform is so important<figure><img src="https://images.theconversation.com/files/313617/original/file-20200204-41532-4opyw4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">James Ross/AAP</span></span></figcaption></figure><p>In 2019, discrimination law rarely left the headlines. Among the issues crowding the public agenda: the <a href="https://theconversation.com/politics-with-michelle-grattan-father-frank-brennan-on-israel-folau-and-religious-freedom-119821">Israel Folau case</a>, the <a href="https://theconversation.com/religious-discrimination-bill-is-a-mess-that-risks-privileging-people-of-faith-above-all-others-122631">draft Religious Discrimination Bill</a>, <a href="https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/Sexdiscrimination">sexuality in schools</a>, <a href="https://theconversation.com/elite-sport-is-becoming-a-platform-to-target-the-trans-community-113347">transgender women’s participation in sport</a>, an <a href="https://www.humanrights.gov.au/our-work/sex-discrimination/projects/national-inquiry-sexual-harassment-australian-workplaces">inquiry into sexual harassment</a> and the Victorian <a href="http://www.legislation.vic.gov.au/domino/Web_Notes/LDMS/PubPDocs.nsf/ee665e366dcb6cb0ca256da400837f6b/34511265071055e4ca2584be001620ab!OpenDocument">Gender Equality Bill</a>, among others.</p>
<p>In such a hectic and political space, we sometimes lose sight of the broader direction of discrimination law and how it should be framed.</p>
<p>The <a href="https://probonoaustralia.com.au/news/2019/10/community-groups-slam-proposed-religious-discrimination-act/">extensive public critiques of the draft Religious Discrimination Bill</a> suggest a thoughtful approach to legal reform is both necessary and politically desirable. In short, we need to talk about the future of discrimination law.</p>
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Read more:
<a href="https://theconversation.com/religious-discrimination-bill-is-a-mess-that-risks-privileging-people-of-faith-above-all-others-122631">Religious Discrimination Bill is a mess that risks privileging people of faith above all others</a>
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<p>To this end, we launched the inaugural <a href="https://law.unimelb.edu.au/centres/celrl/news-and-events/australian-equality-law-forum-2019">Australian Equality Law Forum</a> last November. This brought together over 65 scholars, lawyers and representatives from government, equality bodies, unions, employers and not-for-profits to discuss some of the most challenging issues in discrimination law.</p>
<p>What emerged was a series of key reflections on where discrimination law is heading, as well as lessons on how to maximise its effectiveness.</p>
<h2>Better resourcing of equality agencies</h2>
<p>Equality bodies have experienced <a href="https://www.adelaidenow.com.au/news/south-australia/equal-opportunity-commissioner-calls-for-more-funding-as-office-buckles-under-budget-strain/news-story/95b8146d596d393a6f54ab7e0619fb09">substantial cuts</a> in recent years, but are still expected to achieve more with less.</p>
<p>Though equality bodies have fewer powers than, say, the Fair Work Ombudsman, they still have a significant impact on compliance with discrimination laws. </p>
<p><a href="https://www.humanrights.gov.au/">Federal</a>, <a href="https://www.humanrightscommission.vic.gov.au/">state</a> and <a href="https://hrc.act.gov.au/discrimination/">territory</a> agencies, along with the <a href="https://www.fairwork.gov.au/">Fair Work Ombudsman</a>, are all trying to achieve broader, systemic change through a range of strategies.</p>
<p>For instance, the Victorian Equal Opportunity and Human Rights Commission last year <a href="https://www.humanrightscommission.vic.gov.au/home/our-projects-a-initiatives/fair-minded-cover">concluded a major investigation</a> into mental health discrimination by travel insurers.</p>
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Read more:
<a href="https://theconversation.com/for-women-fighting-the-gender-pay-gap-discrimination-law-is-limited-89918">For women fighting the gender pay gap discrimination law is limited</a>
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<p>The commission found that over an eight-month period, three Australian insurance companies issued over 365,000 insurance policies that discriminated against people with mental health conditions. During the investigation, the insurers committed to changing their practices and began offering cover for mental health conditions.</p>
<p>Going forward, we need to ensure these bodies are given the appropriate resources and support from government to fulfil their remit. We must also consider expanding the powers of equality bodies to match the tools available to the Fair Work Ombudsman and similar agencies.</p>
<h2>Addressing new and emerging challenges for equality</h2>
<p>New forms of work and sources of income <a href="https://pursuit.unimelb.edu.au/articles/challenging-discrimination-in-the-gig-economy">in the gig economy</a> are also bringing new challenges for those impacted by discrimination.</p>
<p>There is growing concern over how algorithms and online systems can perpetuate inequality in society. <a href="https://journalistsresource.org/studies/society/race-society/airbnb-discrimination-hosts/">Racial bias can impact the price of an Airbnb rental listing</a>, for instance, as well as <a href="https://www.newscientist.com/article/mg23230953-000-do-uber-ratings-let-passengers-discriminate-against-drivers/">an Uber driver’s rating</a>. </p>
<p>The gender pay gap also <a href="https://www.academia.edu/31848284/Platform_Inequality_Gender_in_the_Gig-Economy">persists in the gig economy</a>.</p>
<p>The issue is how we enforce our current workplace discrimination laws in the online world. This is particularly problematic when there is a lack of transparency in the technology and data behind the algorithms used by many platforms. For instance, we cannot see the reviews that are used to determine Uber driver and passenger ratings, which makes it difficult to determine if discrimination has occurred.</p>
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Read more:
<a href="https://theconversation.com/big-data-could-be-a-big-problem-for-workplace-discrimination-law-34137">Big data could be a big problem for workplace discrimination law</a>
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<p>Relying on individuals to challenge systemic discrimination of this nature is unrealistic. It is even harder for people employed in precarious or insecure forms of work, such as Uber drivers or Deliveroo riders, to take up this mantle. </p>
<p>Relying on technology companies to self-regulate on these issues has also <a href="https://www.theguardian.com/technology/2019/apr/04/google-ai-ethics-council-backlash">proven ineffective</a>.</p>
<h2>Secrecy and transparency in discrimination law</h2>
<p>These challenges are compounded by the <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3426902">secrecy in the discrimination law complaints system</a> and the culture of silence surrounding claims.</p>
<p>Non-disclosure agreements can offer benefits to individuals involved in discrimination claims. However, they risk undermining systemic change and may fail to address the core drivers of discriminatory conduct. </p>
<p>We need to find a better balance between protecting the privacy interests of individuals and tackling the root causes of discrimination.</p>
<h2>Thinking carefully about exceptions</h2>
<p>The vast array of exceptions found in discrimination laws also lacks a coherent and strategic rationale. Considering they largely prevent or reduce claims in certain sectors, more needs to be done to explain and justify their use.</p>
<p>Indeed, this is where the biggest battles are currently being fought in discrimination law. </p>
<p>For example, the Ruddock religious freedom review led to a public outcry over <a href="https://theconversation.com/ruddock-report-constrains-not-expands-federal-religious-exemptions-96347">existing exceptions in the Sex Discrimination Act</a> that allow religious schools to exclude LGBT students and teachers. </p>
<p>Much of the controversy over the draft Religious Discrimination Bill is also centred on the <a href="https://www.theguardian.com/australia-news/2019/dec/10/coalitions-revamped-bill-allows-religious-organisations-to-discriminate-against-staff">wide exceptions it grants religious organisations</a> to discriminate against other religions.</p>
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Read more:
<a href="https://theconversation.com/why-the-israel-folau-case-could-set-an-important-precedent-for-employment-law-and-religious-freedom-118455">Why the Israel Folau case could set an important precedent for employment law and religious freedom</a>
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<p>There is little that conceptually ties together the many different types of exceptions in our discrimination laws, as well. </p>
<p>For instance, a car insurance provider setting higher premiums for male drivers is entirely different from a church requiring its pastors be of the same faith. While both of these are permissible under existing discrimination law exceptions, there is no single rationale that justifies them. </p>
<p>Much work remains to be done to find the right balance on these exceptions.</p>
<h2>Pursuing collective, proactive and systemic solutions</h2>
<p>Introducing more detailed policies and procedures will not necessarily eliminate inequality. Nor can individuals tackle discrimination alone. </p>
<p>Rather, we need to focus on collective and proactive measures to promote equality.</p>
<p>This might take the form of legal claims filed by organisations on behalf of those who have experienced discrimination. Or it might involve strengthening unions and collective action.</p>
<p>It might also take the form of <a href="https://www.humanrightscommission.vic.gov.au/discrimination/places-of-discrimination/accommodation/positive-duty">positive duties</a>, which require organisations to take proactive steps to address inequality, rather than simply responding when a complaint is made.</p>
<p>Engaging people in the process of achieving equality is also important. This is something which has fortunately been integrated into the <a href="https://www.vic.gov.au/gender-equality-bill">Victorian Gender Equality Bill</a>. </p>
<p>If passed, this law would require public bodies to prepare a gender equality action plan in consultation with their employees and other relevant individuals. This may offer a new approach to achieving equality that other jurisdictions can follow.</p>
<p>To really make a difference, we need a holistic, community-based approach to discrimination law reform. It will require a sustained effort. Addressing discrimination and achieving equality should be on the agenda for all of us.</p>
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<p><em>Correction: The original version of this article said the draft religious discrimination bill contains exceptions that allow religious organisations to discriminate against women, the LGBTI+ community and other religions. This statement was in reference to clause 11 of the bill, however this clause only provides an exception to religious organisations to discriminate on the basis of religion, not other attributes.</em></p><img src="https://counter.theconversation.com/content/129697/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Alysia Blackham receives funding from the Australian Research Council as part of the Discovery Early Career Researcher scheme, DE170100228, ‘Addressing Age Discrimination in Employment'.</span></em></p><p class="fine-print"><em><span>Adriana Orifici and Liam Elphick do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Amid the hyper-political debate on issues like religious discrimination, we sometimes lose sight of the broader direction of discrimination law and the need for thoughtful, strategic reform.Alysia Blackham, Associate Professor in Law and ARC Discovery Early Career Research Fellow, The University of MelbourneAdriana Orifici, Lecturer, Monash University, Monash UniversityLiam Elphick, Adjunct Research Fellow, Law School, The University of Western AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1228732019-09-10T03:59:17Z2019-09-10T03:59:17ZHow might an apology feature in the new religious freedom bill?<figure><img src="https://images.theconversation.com/files/291663/original/file-20190910-109931-16dc2g9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Israel Folau has asked for an apology from Rugby Australia.</span> <span class="attribution"><span class="source">AAP/Peter Rae</span></span></figcaption></figure><p>Sometimes legal disputes are about more than money. Sometimes what is really wanted is an apology – an acknowledgement of wrongful treatment. As former President of the Human Rights and Equal Opportunity Commission, Sir Ronald Wilson, said in <a href="http://classic.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HREOCA/1990/7.html?stem=0&synonyms=0&query=White%20v%20Gollan">White v Gollan</a>, an apology can restore a complainant’s “sense of dignity and self-worth”.</p>
<p>If the federal government’s proposed <a href="https://www.ag.gov.au/Consultations/Pages/religious-freedom-bills.aspx">Religious Discrimination Bill</a> becomes law, a person seeking an apology for religious discrimination will have a new avenue to do so.</p>
<p>As the law stands, the only federal protection against religious discrimination is in the <a href="https://www.legislation.gov.au/Details/C2017C00323">Fair Work Act 2019</a>. While a court can order remedies such as reinstatement or monetary compensation, there appears to be no case under the Fair Work Act which an employer has been ordered by a court to apologise for unlawful termination on the basis of discrimination – religious or otherwise.</p>
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Read more:
<a href="https://theconversation.com/religious-discrimination-bill-is-a-mess-that-risks-privileging-people-of-faith-above-all-others-122631">Religious Discrimination Bill is a mess that risks privileging people of faith above all others</a>
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<p>In contrast, an apology can be ordered under the proposed Religious Discrimination Act in conjunction with the existing remedy provisions of the <a href="https://www.legislation.gov.au/Details/C2017C00143">Australian Human Rights Commission Act 1986</a>. </p>
<p>The Religious Discrimination Bill has been modelled, in part, on the <a href="https://www.legislation.gov.au/Details/C2016C00089">Racial Discrimination Act</a>. Like the Racial Discrimination Act, complaints made under the proposed Religious Discrimination Act will be made initially to the <a href="https://www.humanrights.gov.au/">Australian Human Rights Commission</a>. They may then be referred to the Federal Court if the parties are unable to resolve their dispute.</p>
<p>One of the orders the Federal Court can make is for an apology. The Human Rights Commission Act allows a court to make an order requiring a respondent “to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant”. This can include an order to make a private and/or public apology.</p>
<p>There are <a href="http://rightnow.org.au/opinion-3/sometimes-an-apology-is-worth-more-than-money-monday/">several cases</a> in which a court has ordered an apology for racial discrimination. In <a href="http://classic.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HREOCA/1990/7.html?stem=0&synonyms=0&query=White%20v%20Gollan">White v Gollan</a>, for example, a publican was ordered to send a written apology and publish an apology in a newspaper circulating in the district after he refused to serve two people in the public bar because they were Aboriginal.</p>
<p>Courts consider that the aims of anti-discrimination legislation sometimes can be advanced by an order to apologise for unlawful discrimination.</p>
<p>In this respect, <a href="https://theconversation.com/explainer-does-rugby-australia-have-legal-grounds-to-sack-israel-folau-for-anti-gay-social-media-posts-116170">Israel Folau’s case</a> highlights a difference between orders made under the Fair Work Act and orders that will be available under the proposed Religious Discrimination Act. </p>
<p><a href="https://www.abc.net.au/news/2019-06-28/israel-folau-calls-for-apology-from-rugby-australia/11259956">Earlier this year</a>, Folau called for an apology from Rugby Australia. He said: </p>
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<p>First and foremost I am hoping for an apology from Rugby Australia and an acknowledgement that even if they disagree with my views I should be free to peacefully express my religious beliefs without fear of retribution or exclusion.</p>
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<p>Israel Folau’s lawyer, George Haros, <a href="https://www.foxsports.com.au/rugby/why-raelene-castle-wont-apologise-to-israel-folau/news-story/2be78a374b822224bf61ac3dea13b8a2">has said</a> an apology would “come a long way to resolving the dispute”.</p>
<p>However, Rugby Australia’s Chief Executive, Raelene Castle, has so far ruled out an apology, saying:</p>
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<p>…inclusion means inclusion for everybody, and we’ve got portions of our community who were very hurt and upset by Israel’s comments, hence why we are in this situation.</p>
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<p>The parties to the Folau case go to mediation on December 13. If that fails, the case will go to court in February next year. In his statement of claim, Folau has sought an apology. He will need to persuade the court that an apology order is necessary to “remedy” the effects of wrongful termination under the Act. However, obtaining an apology as an order rather than by negotiation is a long shot.</p>
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Read more:
<a href="https://theconversation.com/why-christians-disagree-over-the-israel-folau-saga-118773">Why Christians disagree over the Israel Folau saga</a>
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<p>Given Rugby Australia’s reluctance to apologise so far, even if the court ordered an apology, would there be any point? </p>
<p>Some state <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWADT/2005/24.html">tribunals</a> have recognised that a distinction can be drawn between a personal, sincere and heartfelt apology, which cannot be compelled, and an apology that is an acknowledgement of wrongdoing under anti-discrimination legislation.</p>
<p>Despite the fact some judges regard an ordered apology as a <a href="https://jade.io/j/?a=outline&id=106015">contradiction in terms</a>, identified benefits include a complainant receiving the remedy they seek, and public acknowledgement of unlawful conduct, which in turn promotes the aims of anti-discrimination laws.</p>
<p>Further, some cases show that once wrongdoing is found, those initially unwilling to apologise may be willing to do so. Finally, an ordered apology may restore a party’s sense of self-worth and dignity. </p>
<p>Undeniably, monetary compensation can be an important to remedy for the harmful effects of discrimination. Yet the opportunity to receive an apology order may prove to be an important additional remedy under the proposed legislation.</p><img src="https://counter.theconversation.com/content/122873/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Renae Barker is the Diocesan Advocate of the Anglian Diocese of Bunbury and advises the Bishop, Bishop in Council, Trustees and Synod on matters of Church law.</span></em></p><p class="fine-print"><em><span>Robyn Olive Carroll does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Sometimes aggrieved parties simply want an apology, and this would be an important provision under the draft legislation.Renae Barker, Lecturer in Law, The University of Western AustraliaRobyn Olive Carroll, ProfessorLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1226312019-08-30T05:16:21Z2019-08-30T05:16:21ZReligious Discrimination Bill is a mess that risks privileging people of faith above all others<p>The federal government <a href="https://www.attorneygeneral.gov.au/Media/Pages/morrison-government-delivers-on-religious-reforms-29-august-2019.aspx?fbclid=IwAR1PizVI_iZLtVyV6yE5id5UoAZPpUwTL35tbvfRONx6ojocwr_nsEkSETU">released</a> its draft Religious Discrimination Bill yesterday.</p>
<p>The <a href="https://theconversation.com/the-government-has-released-its-draft-religious-discrimination-bill-how-will-it-work-122618">idea behind the bill is sound</a>: add the protected ground of “religious belief or activity” to existing federal discrimination protections for race, sex, disability and age. </p>
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Read more:
<a href="https://theconversation.com/the-government-has-released-its-draft-religious-discrimination-bill-how-will-it-work-122618">The government has released its draft religious discrimination bill. How will it work?</a>
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<p>Most would agree it’s wrong to discriminate against someone for the reason that they are of a certain faith – or, indeed, of no faith.</p>
<p>But this bill goes much further than other discrimination laws and weakens existing protections for LGBTIQ+ people, women, people with disabilities, and those from diverse racial and cultural backgrounds. </p>
<p>The month-long <a href="https://www.ag.gov.au/Consultations/Pages/religious-freedom-bills.aspx?fbclid=IwAR28mFX5YwJfyH9oDSeWDKtQh6vn23VHkiqZt-AoUs4pd1iI33ur6I5rNZg">consultation process</a> for the bill must be used to make key changes, or our discrimination laws will end up privileging people of faith above all others.</p>
<h2>Special provisions for the ‘Folau case’</h2>
<p>The <a href="https://www.abc.net.au/news/2019-08-01/israel-folau-court-action-against-rugby-australia-waratahs/11372714">Israel Folau case</a> has clearly been front and centre in the drafting of the Religious Discrimination Bill.</p>
<p>If this bill had been law when Rugby Australia sacked Folau, he might have chosen to pursue a federal discrimination case.</p>
<p>Like all other discrimination laws, the bill prohibits indirect discrimination. This occurs where a condition or requirement is imposed in a general sense and this has the effect of disadvantaging people of a certain religious belief.</p>
<p>In all discrimination laws in Australia, a condition or requirement will not be discriminatory where it is “reasonable” in the circumstances. This is a general release valve that allows all sorts of everyday requirements to be imposed even where it might disadvantage certain group. One example is being required to work certain hours or at a specific location.</p>
<p>Under this provision, it would have been up to Folau to prove that Rugby Australia’s code of conduct disadvantaged people who held religious beliefs.</p>
<p>Rugby Australia would then have a defence if it could prove the requirement was “reasonable” in the circumstances. </p>
<p>This would be the same if a gay rugby player spoke out in support of marriage equality and was then sacked because Rugby Australia banned players from expressing views on marriage equality. The gay player would have to prove this ban disadvantaged gay players; Rugby Australia could then seek to prove it was reasonable as a defence.</p>
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Read more:
<a href="https://theconversation.com/explainer-does-rugby-australia-have-legal-grounds-to-sack-israel-folau-for-anti-gay-social-media-posts-116170">Explainer: does Rugby Australia have legal grounds to sack Israel Folau for anti-gay social media posts?</a>
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<p>However, the Religious Discrimination Bill goes well beyond this general indirect discrimination provision. It contains a separate specific provision dealing with “employer conduct rules” for employers with annual revenue over A$50 million. </p>
<p>This provides that a rule restricting or preventing an employee from making a religious “statement of belief” outside of work is <em>not</em> reasonable. This would mean such rules are likely to be unlawful discrimination. </p>
<p>The only way for an employer to escape this finding under the bill is if they can prove the rule was needed to avoid “unjustifiable financial hardship to the employer”. They can also escape liability if the statement the employee made was malicious or would harass, vilify or incite hatred towards a person or group.</p>
<p>Both of these are very high standards to meet. Rugby Australia may have struggled to meet the “unjustifiable financial hardship” test, even with the threat of <a href="https://www.afr.com/companies/media-and-marketing/israel-folau-rugby-australia-does-the-right-thing-by-sponsors-20190508-p51lbk">key sponsors dropping out</a>. </p>
<p>To harass, vilify or incite hatred are also high bars to meet – much higher than Australian vilification laws usually set.</p>
<p>No other discrimination law in Australia has this “employer conduct rule”. </p>
<p>This means an employer could sack you for expressing almost all views <em>except</em> those that are religious.</p>
<h2>Overriding existing protections</h2>
<p>The Religious Discrimination Bill also explicitly overrides existing discrimination protections for other groups.</p>
<p>The bill provides that a religious “statement of belief” made in good faith will not constitute discrimination under any Australian discrimination law.</p>
<p>It also provides that a statement of belief will not breach Tasmania’s strong anti-vilification protections. Tasmanian law prohibits people from offending, humiliating, intimidating, insulting or ridiculing others on the basis of attributes such as race, disability, sex, sexual orientation and gender identity.</p>
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Read more:
<a href="https://theconversation.com/why-australia-does-not-need-a-religious-discrimination-act-99666">Why Australia does not need a Religious Discrimination Act</a>
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<p>This means a person in Tasmania could lawfully make a statement that humiliates, intimidates or ridicules people of a certain race, as long as they can prove there is some religious basis for that statement.</p>
<p>If someone was to make such a statement with no religious basis, it would remain unlawful. </p>
<p>This bill also appears to be the first and only example of a federal discrimination law explicitly overriding other discrimination laws.</p>
<p>Indeed, Australian discrimination law is largely premised on there being <a href="http://classic.austlii.edu.au/au/legis/cth/consol_act/sda1984209/s10.html">concurrent federal and state systems</a>, neither of which overrides the other.</p>
<p>All other federal discrimination laws contain a specific provision noting that they are not intended to exclude or limit the operation of state laws that can operate concurrently. </p>
<p>In the Religious Discrimination Bill’s version of this clause, it explicitly draws attention to the override provisions for statements of religious belief. Those statements of belief retain priority over other discrimination laws.</p>
<p>No other groups protected by discrimination law are provided with this type of exclusion or override.</p>
<h2>Broad exclusions for religious bodies</h2>
<p>The bill also contains broad provisions on what is <em>not</em> religious discrimination.</p>
<p>One prominent example is found in section 10. Under this provision, where religious bodies act in good faith in conduct that “may reasonably be regarded” as being in accordance with their religious beliefs, these acts cannot be unlawful discrimination.</p>
<p>The definition of “religious body” includes religious schools, religious charities and any other body that is conducted in accordance with the teachings of a particular religion.</p>
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Read more:
<a href="https://theconversation.com/why-australia-needs-a-religious-discrimination-act-105132">Why Australia needs a Religious Discrimination Act</a>
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<p>Some aspects of this provision are uncontroversial – for example, that a religious school should be allowed to prioritise entry for students of the same faith.</p>
<p>However, section 10 is drafted so widely that it could, on the face of it, allow religiously affiliated charities to refuse to assist people of a different faith or of no faith. A Catholic-affiliated soup kitchen could, in theory, refuse to provide food to a Muslim person.</p>
<p>This provision is, again, far broader than clauses found in other federal discrimination laws. </p>
<p>The Sex Discrimination Act, which also protects LGBTIQ+ people, contains a provision stating that some religious acts are not discrimination. However this provision requires that the religious body’s act must “conform to” the beliefs of the religion or be “necessary” to avoid injury to religious sensibilities. </p>
<p>That test is much harder to satisfy than the Religious Discrimination Bill’s test of whether conduct “may reasonably be regarded” as being in accordance with religious beliefs.</p>
<h2>More expansive than other discrimination laws</h2>
<p>The bill contains various other provisions that go far beyond the scope of existing discrimination laws.</p>
<p>Section 8 prohibits any rule imposed by an employer on a health practitioner that would require them to perform services to which they have a religious objection. This could allow doctors to refuse to perform abortions or to perform any services for LGBTIQ+ people.</p>
<p>No such provision is found in any other discrimination law. This means that, under discrimination law, a doctor could refuse to perform services on religious grounds but not on the basis of any other attributes.</p>
<p>Section 11 provides that any reasonable conduct that is intended to “meet a need arising out of a religious belief” or reduce disadvantage based on religious belief will not be unlawful discrimination. </p>
<p>Other discrimination laws also have provisions that allow for positive measures to be taken to further opportunities. For example, women-only gyms are allowed even though this discriminates against men. </p>
<p>However, the provision in the Religious Discrimination Bill is far wider than other discrimination laws and could capture any number of unforeseen situations.</p>
<p>The government released another bill yesterday as part of its religious freedom package: the <a href="https://www.ag.gov.au/Consultations/Documents/religious-freedom-bills/human-rights-legislation-amendment-freedom-of-religion-bill.pdf">Human Rights Legislation Amendment (Freedom of Religion) Bill</a>.</p>
<p>This bill amends all federal discrimination laws so that each contains a new “objects” provision. This provision would require judges, in assessing discrimination claims, to take into account the importance of all human rights, not just non-discrimination rights.</p>
<p>The <a href="https://www.ag.gov.au/Consultations/Documents/religious-freedom-bills/explanatory-notes-human-rights-legislation-amendment-freedom-of-religion-bill.pdf">explanatory memorandum</a> to this bill notes that this provision is intended to ensure freedom of religion is taken into account when assessing any discrimination claims. Other rights could also be taken into account, such as freedom of speech.</p>
<p>This would mean an increased role for religious freedom when discrimination claims are brought on the basis of sex, or race, or LGBTIQ+ status. Over time, this would likely water down protections for other groups.</p>
<h2>Amendments urgently needed</h2>
<p>Overall, the draft Religious Discrimination Bill goes too far in prioritising religious rights over all others. </p>
<p>The idea behind the bill is a good one: to prohibit discrimination on the basis of religious belief or non-belief.</p>
<p>But, in its current form, the bill provides too many broad and special protections to those of religious faith. The consultation period provides an appropriate, if short, window in which to make necessary changes.</p>
<p>The bill should be scaled back so it matches the model and scope of federal discrimination laws protecting race, sex, disability and age. It should also be made clear that it does not override any existing protections for other groups under state laws.</p>
<p>We should not have one model of special protection for religious faith and a lesser model of protection for all other people.</p><img src="https://counter.theconversation.com/content/122631/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>This proposed bill goes much further than other discrimination laws and weakens existing protections for many Australians.Liam Elphick, Adjunct Research Fellow, Law School, The University of Western AustraliaAlice Taylor, Senior Teaching Fellow, Bond UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1226182019-08-29T06:20:56Z2019-08-29T06:20:56ZThe government has released its draft religious discrimination bill. How will it work?<p>Federal Attorney-General Christian Porter has <a href="https://www.attorneygeneral.gov.au/Media/Pages/morrison-government-delivers-on-religious-reforms-29-august-2019.aspx?fbclid=IwAR1PizVI_iZLtVyV6yE5id5UoAZPpUwTL35tbvfRONx6ojocwr_nsEkSETU">released</a> a draft package of religious freedom bills, including the much-anticipated Religious Discrimination Bill.</p>
<p>These bills respond to earlier <a href="https://www.pmc.gov.au/domestic-policy/religious-freedom-review">inquiries</a> into the protection of religious freedom under Australian law. They implement some of the <a href="https://www.ag.gov.au/RightsAndProtections/HumanRights/Pages/Freedom-of-Religion.aspx">recommendations</a> of the Expert Panel on Religious Freedom (known as the Ruddock review).</p>
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Read more:
<a href="https://theconversation.com/after-his-miracle-election-will-scott-morrison-feel-pressure-from-christian-leaders-on-religious-freedom-117798">After his 'miracle' election, will Scott Morrison feel pressure from Christian leaders on religious freedom?</a>
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<p>The government has committed to considering any <a href="https://www.ag.gov.au/Consultations/Pages/religious-freedom-bills.aspx?fbclid=IwAR28mFX5YwJfyH9oDSeWDKtQh6vn23VHkiqZt-AoUs4pd1iI33ur6I5rNZg">submissions</a> received by October 2 2019 in its development of these bills. It plans to introduce final draft legislation to parliament later in October.</p>
<p>The government reportedly wishes to pass this legislation before <a href="https://www.afr.com/politics/federal/pm-stresses-unity-on-religious-freedom-push-20190702-p523dj">Christmas</a>. </p>
<h2>What do these bills seek to achieve?</h2>
<p>The Religious Discrimination Bill forms the crux of the legislative package. </p>
<p>This bill does not create a positive right to freedom of religion – often termed a “sword”. </p>
<p>Instead, it aims to provide a “<a href="https://www.sbs.com.au/news/government-says-religious-freedom-laws-will-be-a-shield-not-sword">shield</a>” by prohibiting discrimination on the basis of religious belief or activity in the following areas of public life: </p>
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<li>work</li>
<li>education</li>
<li>access to premises</li>
<li>goods, services and facilities</li>
<li>accommodation</li>
<li>land</li>
<li>sport and clubs.</li>
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<p>The Australian Human Rights Commission would be empowered to inquire into and conciliate complaints of unlawful discrimination on the grounds of religious belief or activity.</p>
<p>Porter represents these proposed reforms as <a href="https://www.attorneygeneral.gov.au/Media/Pages/morrison-government-delivers-on-religious-reforms-29-august-2019.aspx">complementary and similar</a> to existing federal laws that prohibit discrimination on the grounds of race, sex, disability and age.</p>
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Read more:
<a href="https://theconversation.com/religious-discrimination-legislation-would-hit-big-companies-harder-than-small-business-122623">Religious Discrimination legislation would hit big companies harder than small business</a>
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<p>In one sense, this is true. The bill prohibits discrimination largely in the same terms as existing discrimination laws, but adds the “religious belief or activity” ground.</p>
<p>This means that, for example, it would be unlawful to terminate a person’s employment on the basis of them being Catholic or Muslim or Jewish.</p>
<p>Such protection already exists in all state and territory laws except in South Australia and New South Wales.</p>
<p>“Religious belief or activity” is also defined symmetrically in the bill. It includes holding a religious belief or engaging in religious activity, as well as <em>not</em> holding a religious belief or <em>not</em> engaging in religious activity.</p>
<p>This is important because it provides equal protection to people of a religious faith and those of no religious faith. Your boss would also be prohibited from firing you on the basis that you are <em>not</em> religious.</p>
<h2>What are the key differences?</h2>
<p>The differences from other federal discrimination laws are mostly contained in section 8 of the bill.</p>
<p>First, section 8(3) clearly targets an <a href="https://www.abc.net.au/news/2019-08-01/israel-folau-court-action-against-rugby-australia-waratahs/11372714">Israel Folau-type situation</a>. </p>
<p>This section prohibits indirect discrimination, which is standard practice in discrimination law. This is where the imposition of a condition or requirement disadvantages a certain group of people and is not reasonable.</p>
<p>For example, an employer could impose a rule that all employees must attend work from 9-11am on Sundays, because the employer happens to find this a productive time to work. This would disadvantage those who may wish to practise their faith at that time, and appears to have no reasonable basis. </p>
<p>However, the section goes on to focus on employer conduct rules, which are not mentioned in any other federal discrimination laws.</p>
<p>An employer conduct rule under this section is not reasonable if it would restrict or prevent an employee “from making a statement of belief at a time other than when the employee is performing work”, unless the statement is malicious or would harass, vilify or incite hatred against a person or group.</p>
<p>A code of conduct prohibiting employees from making offensive comments on social media outside of work could therefore be unlawful discrimination.</p>
<p>This provision only applies, though, to employers with annual revenue of at least A$50 million.</p>
<p>Second, there is a provision in section 8(5) allowing conscientious objections by health practitioners.</p>
<p>This means that where a health practitioner is required by their employer to provide a service to which they object on religious grounds, this requirement will likely be unreasonable – and therefore discriminatory.</p>
<p>This could allow individual doctors to refuse to perform a wide range of services on religious grounds, including abortion, assisted suicide and procedures for transgender patients. The Trump administration <a href="https://www.nytimes.com/2019/05/13/opinion/can-doctors-refuse-patients.html?fbclid=IwAR2OV06YnRMbwnRtAq-ym4e7-2T7H4OXozAHJyjbUQFNLQhuVvkn4g34qpY">introduced a similar rule</a> earlier this year.</p>
<p>Third, despite <a href="https://www.theguardian.com/australia-news/2019/jul/12/christian-porter-says-religious-freedom-bill-wont-erode-state-lgbt-protections">Porter previously stating</a> that the Religious Discrimination Bill was not intended to override state laws, it does just that.</p>
<p><a href="http://classic.austlii.edu.au/au/legis/tas/consol_act/aa1998204/s17.html">Section 17(1)</a> of the Tasmanian Anti-Discrimination Act prohibits people from offending, humiliating, intimidating, insulting or ridiculing others on the basis of attributes such as disability, sex, sexual orientation and gender identity.</p>
<p>Section 41 of the Religious Discrimination Bill states that “a statement of belief does not contravene section 17(1)” of the Tasmanian Act unless it is malicious or is likely to harass, vilify or incite hatred or violence against a person or group of persons. </p>
<p>It also provides that a statement of belief does not constitute discrimination for the purposes of <em>any</em> discrimination law in Australia – whether at federal, state or territory level.</p>
<p>This is rare in discrimination law, where federal and state systems are <a href="http://classic.austlii.edu.au/au/legis/cth/consol_act/sda1984209/s10.html">usually seen to be</a> separate and concurrent.</p>
<p>It would mean statements based on religious belief that offend, humiliate, insult or intimidate women, LGBTIQ+ people or persons with disabilities would be lawful, regardless of what state laws provide. </p>
<p>The only way such statements would be unlawful under any discrimination law is if they met the higher threshold of harassment, vilification or incitement of hatred.</p>
<h2>Short consultation limits capacity for scrutiny</h2>
<p>Prior to the bills’ release, the shadow attorney-general, Mark Dreyfus, <a href="https://www.theguardian.com/australia-news/2019/aug/29/coalition-to-release-religious-discrimination-bill-as-labor-urges-greater-scrutiny">accused</a> the government of seeking to rush the bill through parliament without sufficient consultation. He said:</p>
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<p>The Liberals have been arguing about religious discrimination for more than two years but appear to want to give the rest of the country just weeks to debate it. </p>
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<p>The attorney-general notes that the proposed reforms reflect an <a href="https://www.attorneygeneral.gov.au/Media/Pages/morrison-government-delivers-on-religious-reforms-29-august-2019.aspx">election commitment</a>. </p>
<p>Yet there will be just four weeks of community consultation, and just 16 parliamentary sitting days remain until the end of the year. This provides a short window in which to consider complex changes to Australian law.</p>
<p>In contrast, the <a href="https://www.attorneygeneral.gov.au/Media/Pages/Review-into-the-Framework-of-Religious-Exemptions-in-Anti-discrimination-Legislation-10-april-19.aspx">Australian Law Reform Commission</a> has been given 12 months to consider the question of religious organisations’ exemptions from discrimination law – which form just a handful of provisions. It won’t report until April 2020, including on matters that cut across some of the proposals in these bills.</p>
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Read more:
<a href="https://theconversation.com/ruddock-report-constrains-not-expands-federal-religious-exemptions-96347">Ruddock report constrains, not expands, federal religious exemptions</a>
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<p>One issue with the brief consultation period is that it limits scrutiny of how today’s proposals vary from the recommendations of the Ruddock review. </p>
<p>For example, the Religious Discrimination Bill establishes a position of Freedom of Religion Commissioner in the Australian Human Rights Commission. The commissioner would be responsible for strengthening community understanding of religious freedom, advocating for religious freedom issues, and promoting compliance with the anticipated Religious Freedom Act.</p>
<p>Yet the <a href="https://www.ag.gov.au/RightsAndProtections/HumanRights/Documents/religious-freedom-review-expert-panel-report-2018.pdf">Ruddock report</a> recommended that protection of religious freedom should occur within the existing commissioner model, not by spending an <a href="https://www.dropbox.com/s/wvxb516r6u5s92f/Freedom%20for%20Faith%20submission%20to%20Ruddock%20Review.pdf?dl=0">estimated</a> A$1.25-1.5 million a year on a new commissioner.</p>
<p>Considering the unique aspects of the proposed Religious Discrimination Bill, a longer consultation period should be provided to ensure appropriate evaluation. </p>
<p>But, however long the consultation process, any drastic departures from existing discrimination law models should be carefully scrutinised to assess why and how religion should be given any special status.</p><img src="https://counter.theconversation.com/content/122618/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Given the unique aspects of the proposed bill, there should be a longer consultation period to examine why religious freedoms should be prioritised over other freedoms.Liam Elphick, Honorary Research Fellow, Law School, The University of Western AustraliaAmy Maguire, Associate Professor, University of NewcastleAnja Hilkemeijer, Lecturer in Law, University of TasmaniaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1049822018-10-15T12:21:51Z2018-10-15T12:21:51ZView from The Hill: Conservatives may come to regret stirring hornets’ nest of religious freedom<p>When Scott Morrison promised to abolish the right of religious schools to expel gay students because of their sexual orientation, his motive was obvious – and so was what would inevitably happen next.</p>
<p>Morrison insults people’s intelligence by claiming his move is unrelated to the Wentworth byelection. You don’t say you must deal immediately with a single matter from a report that you won’t yet release unless there is some political imperative.</p>
<p>Wentworth has a large gay population, and a leak from the Ruddock report on religious freedom gave independent Kerryn Phelps – the Liberals’ main opponent – an issue to exploit. So Morrison played the fixer.</p>
<p>But it was clear that once he addressed the question of students, the debate would focus on teachers. That’s much more difficult for a Liberal prime minister, very religious himself, who has a strong right wing in his party.</p>
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<a href="https://theconversation.com/coalition-trails-47-53-in-newspoll-as-ipsos-finds-74-oppose-law-discriminating-against-gay-students-and-teachers-104906">Coalition trails 47-53% in Newspoll, as Ipsos finds 74% oppose law discriminating against gay students and teachers</a>
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<p>The existing law (and the tweaked one that was proposed by the Ruddock inquiry) allows these schools to discriminate against both students and teachers. While the situation of the students might appear more outrageous, in practical terms the coverage of teachers affects more people.</p>
<p>This was ripe for a counter-move by Bill Shorten. On Monday the opposition leader called for a wider change.</p>
<p>“I’m pleased both sides of politics are now united in the view that exemptions allowing religious schools to discriminate against children should be removed”, Shorten said.</p>
<p>“I believe we can use this goodwill to go further and remove the exemption that would allow a teacher or school staff member to be sacked or refused employment because of their sexual orientation.</p>
<p>These laws are no longer appropriate, if indeed they ever were appropriate.” (The current law dates from Labor’s time.)</p>
<p>Predictably this was a step too far for the government, even under the pressure of Wentworth.</p>
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<a href="https://theconversation.com/politics-podcast-the-battle-for-wentworth-104706">Politics podcast: The battle for Wentworth</a>
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<p>Morrison argued in parliament that while students needed to be protected “urgently”, there would be “a time and a place to address” other issues from the Ruddock review.</p>
<p>Advocating a ban on discrimination against teachers would take Morrison onto very sticky ground among conservatives in his ranks and some figures in the churches. (It will be interesting to see whether Labor comes under some church pressure for its stand.)</p>
<p>The Anglican Archbishop of Sydney, Glenn Davies, while supporting Morrison’s position on students, <a href="https://sydneyanglicans.net/news/archbishop-rejects-mischief-making-over-ruddock-report">said</a> church schools “should not be forced to play by secular rules. … Anglican schools, if they are going to remain Anglican, must be able to employ staff who support the Christian values of the school”.</p>
<p>Despite Morrison wanting to push the teacher issue off, deputy Liberal leader Josh Frydenberg was willing to put a stake in the ground. “I don’t think there’s any room for discrimination … be it a student or against a teacher,” he <a href="http://www.abc.net.au/radionational/programs/breakfast/were-on-track-to-bring-federal-budget-back-in-balance/10376146">told</a> the ABC, while adding, “that being said, we need to work through this process with the Labor Party and ensure that we can provide a bipartisan front to the country.”</p>
<p>Campaigning in Wentworth, Liberal candidate Dave Sharma, appearing at a candidates’ forum, denounced discrimination against teachers, and said the 2013 law should be changed.</p>
<p>As the Liberals fight for survival in the seat – which is also a fight for the survival of the government’s parliamentary majority - Sharma now seems to be going for broke, telling the locals he had been “appalled” at how Malcolm Turnbull had been treated. This is not a candidate going rogue - he has been let off the leash to maximise his chances.</p>
<p>But Sharma won’t be helped in this progressive electorate by the government’s extraordinary decision to support Pauline Hanson’s (unsuccessful) motion on Monday calling on the Senate to acknowledge “the deplorable rise of anti-white racism and attacks on Western civilisation” and that “it is OK to be white.” This will take some explaining in Wentworth.</p>
<p>The amendment on students is not expected to go to Tuesday’s Coalition party meeting. Maybe drafting is taking a while, or perhaps the government, now it has announced its plan, would prefer to leave the detailed discussion until next week, after Wentworth.</p>
<p>Even the precise terms of the amendment are uncertain. The government refers to expulsion, but what about enrolments, which are covered by the present wide provision?</p>
<p>When asked by The Conversation to clarify, a spokesman for Attorney-General Christian Porter said: “Our amendments will be broad enough to minimise the risk of students at independent schools facing discrimination, while at the same time respecting the right of religious schools to run their schools in line with their beliefs and traditions.”</p>
<p>Some sources say the amendment will be confined to expulsion.</p>
<p>The opposition and others will keep the teacher issue running to get maximum exposure before Saturday. Senate motions are planned. The Labor one calls for immediate legislation to “abolish the current exemptions that permit discrimination against LGBTI students and staff in religious schools”, and also for the government to release the Ruddock report at once.</p>
<p>Some Liberals who agitated for action on religious freedom might be starting to appreciate that the best stand for a conservative can sometimes be just to leave things alone.</p>
<p>The Ruddock review was a concession to those opposed to same-sex marriage.</p>
<p>But the fallout from it so far has been pressure to roll back privileges accorded to religions, rather than to extend them – quite the opposite to the direction in which Morrison appeared to be heading only weeks ago.</p><img src="https://counter.theconversation.com/content/104982/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michelle Grattan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Some Liberals who agitated for action on religious freedom might be starting to appreciate that the best stand for a conservative can sometimes be to just leave things alone.Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/985522018-06-27T19:56:33Z2018-06-27T19:56:33ZUN set to review Australia’s record on women’s rights – and may find it wanting<figure><img src="https://images.theconversation.com/files/224828/original/file-20180626-19382-efrks5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The committee will review Australia's compliance with our obligations under the women's rights treaty.</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>Australia’s record on women’s rights is being reviewed by the United Nations <a href="https://www.ohchr.org/EN/HRBodies/CEDAW/Pages/CEDAWIndex.aspx">Committee on the Elimination of Discrimination Against Women</a> in Geneva on July 2-3. The committee will review Australia’s compliance with our obligations under the women’s rights treaty - the <a href="https://www.ohchr.org/EN/ProfessionalInterest/Pages/CEDAW.aspx">Convention on the Elimination of All Forms of Discrimination Against Women</a> (CEDAW). </p>
<p>Every state party to CEDAW is required to submit a report every four years on how it is complying with its obligations under the convention. Australia was due to lodge its report in 2014, but only lodged it in December 2016, delaying the reporting cycle. The committee reviews these reports, then reports on the issues to which the government must respond.</p>
<p>Australia has a seat on the UN <a href="https://www.ohchr.org/EN/HRBodies/HRC/Pages/AboutCouncil.aspx">Human Rights Council</a>. It was elected on a bid built on <a href="http://dfat.gov.au/international-relations/international-organisations/un/unhrc-2018-2020/pillars-and-priorities/Pages/pillars-and-priorities.aspx">five pillars</a>, including gender equality and <a href="https://theconversation.com/with-a-seat-on-the-un-human-rights-council-australia-must-fix-its-record-on-indigenous-rights-86060">Indigenous people’s rights</a>. </p>
<p>However, we’re seeing little improvement on women’s rights and a concerning deterioration in some areas. </p>
<h2>What is the review process?</h2>
<p>CEDAW is an international treaty that promotes women’s rights and gender equality. As a party to CEDAW, Australia is obliged to promote and protect women’s rights, including equality before the law, freedom from discrimination, political participation, health, education and employment.</p>
<p>The committee is made up of 23 independent experts. It is responsible for monitoring how each state party is complying with its obligations. The committee also makes recommendations for how a state party can improve its compliance.</p>
<p>The committee is not limited to its list of issues. It will be informed by the report lodged by the Australian government and by <a href="http://www.klc.unsw.edu.au/sites/klc.unsw.edu.au/files/CEDAW%20Shadow%20report%20-%20Final%2014.6.18.pdf">civil society reports</a>, which set out the human rights situation on the ground.</p>
<p>Kingsford Legal Centre will attend the review as part of a civil society delegation to brief the committee members on human rights violations faced by women and girls in Australia.</p>
<h2>What are the key issues we expect the committee to raise?</h2>
<p><strong>The human rights framework in Australia</strong></p>
<p>Australia remains the only Western democracy <a href="https://theconversation.com/how-a-charter-of-rights-could-protect-australians-fundamental-freedoms-81947">without a bill of rights or human rights act</a>, and human rights have only limited protection in the Australian Constitution. CEDAW is not comprehensively enacted in Australian law. We expect the committee to again criticise Australia for not implementing CEDAW in law and not enacting a human rights act. </p>
<p><strong>Aboriginal and Torres Strait Islander women and girls</strong></p>
<p>Aboriginal and Torres Strait Islander women and girls continue to face barriers to equality. We expect this to be a key focus for the committee. We anticipate the Australian government will be questioned on:</p>
<ul>
<li><p>Aboriginal and Torres Strait Islander women having a life expectancy <a href="https://www.aihw.gov.au/getmedia/b0a6bd57-0ecb-45c6-9830-cf0c0c9ef059/16953.pdf.aspx?inline=true">9.5 years less</a> than for non-Indigenous women</p></li>
<li><p>the <a href="https://www.alrc.gov.au/news-media/media-release/pathways-justice-indigenous-incarceration">high incarceration rate</a> of Aboriginal and Torres Strait Islander women, the fastest-growing prison cohort in Australia, accounting for <a href="http://www.abs.gov.au/ausstats/abs@.nsf/Lookup/by%20Subject/4517.0%7E2016%7EMain%20Features%7EImprisonment%20rates%7E12">34% of all incarcerated women</a> despite representing only 2.6% of the adult female population </p></li>
<li><p>the impact of parental imprisonment on children, as an estimated 80% of Aboriginal and Torres Strait Islander women in prison are mothers, and children of incarcerated mothers are at <a href="https://static1.squarespace.com/static/580025f66b8f5b2dabbe4291/t/59378aa91e5b6cbaaa281d22/1496812234196/OverRepresented_online.pdf">increased risk</a> of entering the child protection and justice systems</p></li>
<li><p>the prevalence of violence against Aboriginal and Torres Strait Islander women, who are <a href="https://www.slp.wa.gov.au/publications/publications.nsf/DocByAgency/FEB7D71FB3A6AF1948256C160018F8FE/$file/Gordon+Inquiry+Final.pdf">45 times more likely</a> to experience family violence than non-Aboriginal women; <a href="http://www.abc.net.au/radionational/programs/latenightlive/crisis-of-domestic-abuse-of-indigenous-women/6442954">34 times more likely</a> to be hospitalised due to this violence; and <a href="https://www.dss.gov.au/sites/default/files/documents/10_2016/third_action_plan.pdf">3.7 times more likely</a> to be victims of sexual violence. </p></li>
</ul>
<p><strong>Violence against women</strong></p>
<p>The committee is expected to question the government on the endemic nature of violence against women in Australia, and the disproportionate impact this has on Aboriginal and Torres Strait Islander women, women with disability (who are <a href="http://www.pwd.org.au/documents/orgdocs/FS-Violence-PWD2014.doc">40% more likely</a> to experience domestic violence than women without a disability) and women from a culturally and linguistically diverse background. We’re also anticipating the committee will raise the <a href="https://aifs.gov.au/publications/elder-abuse/3-what-known-about-prevalence-and-dynamics-elder-abuse">gendered nature</a> of elder abuse. </p>
<p><strong>Sexual harassment of women</strong></p>
<p>With the rise of the <a href="https://theconversation.com/metoo-is-not-enough-it-has-yet-to-shift-the-power-imbalances-that-would-bring-about-gender-equality-92108">#MeToo movement</a>, we’re expecting the committee to raise the prevalence of sexual harassment. A <a href="https://www.shine.com.au/media-centre/media-releases/new-survey-the-worst-workplaces-in-australia-for-sexual-harassment-and-discrimination/">recent survey</a> indicated 35% of women have experienced sexual harassment in the workplace in Australia. It’s likely the committee will commend the government on the recently announced <a href="http://www.abc.net.au/news/2018-06-20/ahrc-to-launch-inquiry-into-sexual-harassment/9887268">national inquiry into workplace sexual harassment</a>. </p>
<p><strong>Refugee women and girls</strong></p>
<p>The <a href="https://theconversation.com/un-slams-australias-human-rights-record-87169">UN has repeatedly criticised</a> Australia’s treatment of refugee women and girls. This is likely to be a key focus of the committee. We expect it to challenge the Australian government on its mandatory immigration detention policy.</p>
<p>Other human rights concerns include <a href="https://www.smh.com.au/politics/federal/offshore-detention-study-detects-mental-health-rates-amongst-the-highest-recorded-of-any-surveyed-population-20161121-gstw3o.html">widespread mental health problems</a> experienced by women and girls in offshore detention, reports of <a href="https://www.theguardian.com/australia-news/2016/aug/11/nauru-files-reveal-cases-of-alleged-sexual-violence-and-child-abuse-not-disclosed-to-parliament">sexual violence and child abuse</a> of these detainees, insufficient access to health care, and <a href="https://www.theguardian.com/australia-news/2017/aug/21/three-pregnant-refugees-and-nearly-50-others-denied-medical-transfers-from-nauru">denial of medical transfers from Nauru</a>. </p>
<h2>Next steps</h2>
<p>The committee will release its recommendations shortly after the review. Australia has a poor record of implementing treaty body recommendations. </p>
<p>It will be interesting to see if <a href="https://theconversation.com/australias-human-rights-council-election-comes-with-a-challenge-to-improve-its-domestic-record-80953">Australia’s seat on the Human Rights Council</a> has any impact on the government’s willingness to implement the committee’s recommendations and improve the human rights situation for women and girls at home. With the <a href="https://theconversation.com/as-the-us-leaves-the-un-human-rights-council-it-may-leave-more-damage-in-its-wake-98618">withdrawal of the United States</a> from the council last week, Australia has the opportunity to step up and demonstrate leadership by taking a principled approach to implementing human rights.</p><img src="https://counter.theconversation.com/content/98552/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Maria Nawaz works at Kingsford Legal Centre, which receives funding from the NSW and federal governments.</span></em></p><p class="fine-print"><em><span>Anna Cody works at Kingsford Legal Centre which receives funding from the Federal and State governments. </span></em></p>Australia’s record on women’s rights will come under scrutiny, including its treatment of Indigenous women and girls, sexual harassment and violence against women.Maria Nawaz, Law Reform Solicitor/Clinical Legal Supervisor, Kingsford Legal Centre UNSW; Lecturer, UNSW Human Rights Clinic, UNSW SydneyAnna Cody, Associate Professor and Director, Kingsford Legal Centre, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/913022018-03-08T11:40:32Z2018-03-08T11:40:32ZVery few women oversee US companies. Here’s how to change that<figure><img src="https://images.theconversation.com/files/209402/original/file-20180307-146697-1ggogv3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Men's dominance in the boardroom has barely changed over the years. </span> <span class="attribution"><span class="source">Everett Collection/Shutterstock.com</span></span></figcaption></figure><p>Women’s participation in the labor force <a href="https://fred.stlouisfed.org/series/LNS11300002">has soared</a> over the past 50 years, rising from 32 percent in 1948 to 56.7 percent as of January. </p>
<p>Yet those gains have not translated into the U.S. corporate boardroom, where women <a href="http://publications.credit-suisse.com/tasks/render/file/index.cfm?fileid=5A7755E1-EFDD-1973-A0B5C54AFF3FB0AE">held just 16.6 percent</a> of seats in 2015, according to a Credit Suisse analysis of the world’s largest 3,400 or so companies. That’s up a little from the 12.7 percent five years earlier but still disappointingly low.</p>
<p>As <a href="https://scholar.google.com/citations?user=loPMxzAAAAAJ&hl=en&oi=ao">scholars</a> of corporate governance, we felt the answer to this puzzle might require a bit of digging beyond this simple percentage. So we crunched the numbers on individual states over an 11-year period to see where women fared better in the boardroom and why. </p>
<p>Our findings were startling but also suggest a solution.</p>
<h2>The case for parity</h2>
<p>The ethical case for a government promoting or even mandating gender equality, whether in the classroom, office or boardroom, seems fairly straightforward.</p>
<p>Beyond that, research suggests that companies with more female directors achieve better <a href="http://amj.aom.org/content/58/5/1546.short">financial results</a>, <a href="http://onlinelibrary.wiley.com/doi/10.1111/corg.12165/full">are more socially responsible</a> and are less likely to engage in wrongdoing such as <a href="http://amj.aom.org/content/58/5/1572.short">fraud</a>. </p>
<p>While many countries in Europe have used quotas to get more women on corporate boards, in the U.S. there is <a href="https://www.nytimes.com/2015/03/07/world/europe/german-law-requires-more-women-on-corporate-boards.html">resistance</a> to doing so. Instead, federal government agencies have focused on disclosure, which <a href="https://web.northeastern.edu/ruthaguilera/wp-content/uploads/2017/02/36.-Terjesen-Aguilera-Lorenz-2014-JBE.pdf">has had little impact</a>.</p>
<p>Under the U.S. Constitution, states have significant power in setting their own policies. And while none have instituted a gender quota for corporate boards, some states have gone further than the federal government on a variety of policies that affect women’s career advancement, such as workplace discrimination and family planning. We theorized that these differences might help explain the prevalence of women on boards in some states and not others.</p>
<h2>A wide range of representation</h2>
<p>To find out, <a href="https://www.sciencedirect.com/science/article/pii/S0148296318300444">we examined</a> the boardroom diversity of the 1,500 companies in the Standard & Poor’s 1500 index, which represents about 90 percent of total U.S. market capitalization. </p>
<p>We focused on the period 2003 to 2014 using data provided by <a href="https://www.bloomberg.com/research/stocks/private/snapshot.asp?privcapId=3419764">Governance Metrics International</a>, which compiles governance information annually from companies’ proxy statements and public filings. </p>
<p>Nationally, our data showed that just 15.2 percent of S&P 1500 board seats were occupied by women in 2014, up modestly from 9.7 percent in 2003. One explanation for why our figures show less representation than the Credit Suisse data cited earlier is that the largest corporations have done a better job promoting women, while the S&P 1500 includes medium-sized companies as well. This is a correlation also supported by our data.</p>
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<p>Our sample included companies headquartered in 49 states (none were in Wyoming). As some states only had a few companies listed in the index during the period and others had many, we controlled for the economic size of each state as well as several other factors, such as a company’s size and state demographics. This allowed us to more fairly compare each state’s figures and isolate potential explanations. </p>
<p>Overall, the national trend of increasing representation persisted in the vast majority of states from 2003 to 2014, while four experienced slight declines. Not a single woman served on the board of the sole Alaskan company in the index during the period. Beyond that, the data showed wide variation from state to state. </p>
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<p>In 2014, the worst states for women on boards were Louisiana, Nebraska, New Hampshire and Alaska, all of which had less than 10 percent. New Mexico boasted the most women on boards at 44 percent, followed by Vermont, Delaware, Iowa and Maine. </p>
<p>Another way of looking at the data is to focus not just on basic representation but at what percentage of companies have three or more women in the boardroom. Research shows that this <a href="https://link.springer.com/content/pdf/10.1007/s10551-011-0815-z.pdf">can constitute a critical mass</a> that enables them to make a real difference by affecting a board’s working style and dynamic and creating a more favorable environment for women’s perspectives to be heard. </p>
<p>By that measure, the data are a lot more discouraging. Only 11 states, such as Minnesota, Connecticut and Washington, had even a third of their companies meet this threshold. In 18 other states, including Louisiana, Tennessee and Virginia, less than 10 percent had at least three women on their boards. </p>
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<h2>Women’s rights</h2>
<p>What explains the differences? </p>
<p>Our initial hypothesis was that state policies had something to do with it because <a href="http://journals.sagepub.com/doi/full/10.1177/0007650315613980">existing research</a> has found a link between national governmental policies and participation of women in leadership positions. </p>
<p>So we examined whether states had gender-related policies in three general areas: reproductive rights, anti-discrimination and work-family balance. We then analyzed several databases to find out which states had these policies. </p>
<p>We found that that companies headquartered in states with policies that provided more protections for women than the federal government requires in terms of reproductive rights, such as public funding for abortion and laws against gender discrimination, tended to have a greater share of female directors on their boards. Interestingly, we didn’t find a link with work-life balance policies such as better access to maternity leave. </p>
<p>For example, states like Minnesota, Connecticut and Washington – all of which have a greater level of female board representation than the national average over the 11-year period – also had most of the policies we identified. All three provide funding for abortions through Medicaid and have passed <a href="http://www.ncsl.org/research/labor-and-employment/discrimination-employment.aspx">gender discrimination protections</a> that are stronger than exist at the federal level. </p>
<p>In contrast, states where relatively few women sat on corporate boards, such as Alabama, Colorado, Louisiana, Georgia, Nebraska and Virginia, tended to have weaker policies protecting women and their rights. </p>
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<p>Overall, we found a strong statistical link between these types of policies and female representation in the boardroom, which held even after controlling for alternative explanations, such as the political orientation of the state and cultural attitudes toward women based on surveys. To us, the point isn’t that these policies in particular lead to more women on boards, but that they broadly represent a favorable cultural environment for women in the workplace. </p>
<p>There were a few notable exceptions to our findings. California, for example, which has progressive policies in these areas, boasts few women on its boards, or about 14 percent in 2014. One possible explanation could be that <a href="http://www.jstor.org/stable/pdf/20159898.pdf?refreqid=excelsior%3Acccc9b1c2022ca9e0a0f530fa8775900">older companies are more likely to have more women on their boards</a>. A significant number of California companies in the index were relatively young. </p>
<h2>Equity without quotas</h2>
<p>Making it into the highest echelons of a corporation is very difficult and typically requires opportunity for training and access to social networks, both of which are jeopardized when, for example, women suffer harassment on the job or incur a “motherhood penalty.” It is not surprising, for example, that female directors are significantly more likely to be <a href="http://www.heidrick.com/Knowledge-Center/Publication/2012-Board-Of-Directors-Survey">single and childless</a>, compared with their male peers.</p>
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<p>European countries such as <a href="https://web.northeastern.edu/ruthaguilera/wp-content/uploads/2017/02/36.-Terjesen-Aguilera-Lorenz-2014-JBE.pdf">Iceland, Norway</a> and <a href="https://www.la-croix.com/Economie/Social/Les-femmes-restent-tres-minoritaires-dans-conseils-dadministration-2017-01-03-1200814337">France</a> have become <a href="http://publications.credit-suisse.com/tasks/render/file/index.cfm?fileid=5A7755E1-EFDD-1973-A0B5C54AFF3FB0AE">world leaders</a> in female representation by instituting quotas. In 2017, <a href="http://eige.europa.eu/gender-statistics/dgs/indicator/ta_pwr_bus_bus__wmid_comp_compbm">women held more than 40 percent</a> of the seats on the largest listed companies in all three countries, a significant increase from a decade earlier. </p>
<p>The good news is that our findings suggest that states – as well as the federal government – have policy options at their disposal short of establishing gender quotas to increase female representation in the boardroom.</p><img src="https://counter.theconversation.com/content/91302/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The share of board seats held by women varies dramatically across the country, from none in Alaska to close to half in New Mexico. A few key policies may make all the difference.Yannick Thams, Assistant Professor of Strategy and International Business, Suffolk UniversityBari Bendell, Assistant Professor of Management and Entrepreneurship, Suffolk UniversitySiri Terjesen, Dean's Faculty Fellow in Entrepreneurship, American University Kogod School of BusinessLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/881622017-11-28T05:17:22Z2017-11-28T05:17:22ZAustralia’s record on racial equality under the microscope<figure><img src="https://images.theconversation.com/files/196651/original/file-20171128-2066-14rlas2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The Committee on the Elimination of Racial Discrimination has begun its two-day review of Australia's record on racial equality.</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>Overnight in Geneva, the United Nations Committee on the Elimination of Racial Discrimination (CERD) began its two-day review of Australia, asking government representatives to explain their progress in promoting racial equality and tackling racism. </p>
<p>The CERD <a href="http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CERD%2fC%2fAUS%2fQ%2f18-20&Lang=en">notified</a> the government in advance of the key focus areas of the review. Not surprisingly, these include the situation of Indigenous people, and of migrants, asylum seekers and refugees; racist hate speech and hate crimes; and human rights and anti-racism protections in Australia’s laws and policies.</p>
<h2>What is the CERD?</h2>
<p>Australia has ratified seven of the nine core human rights treaties. Each treaty has its own treaty monitoring body, like the CERD, comprised of independent experts who are nominated by governments but do not represent them.</p>
<p>These bodies monitor states’ compliance with their international law obligations as set out in the treaty, primarily through <a href="https://theconversation.com/explainer-why-is-the-un-reviewing-australias-record-on-torture-34015">periodic reporting</a>.</p>
<p>Most recently, Australia received <a href="https://theconversation.com/un-slams-australias-human-rights-record-87169">criticism</a> from another one of these bodies, the Human Rights Committee, which highlighted shortcomings in relation to Indigenous rights, treatment of asylum seekers and refugees, and the lack of a national bill of rights.</p>
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<strong>
Read more:
<a href="https://theconversation.com/un-slams-australias-human-rights-record-87169">UN slams Australia’s human rights record</a>
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<p>It is often overlooked that of these nine core treaties, the International Convention on the Elimination of Racial Discrimination (ICERD), was actually adopted before any of the others. The CERD became operational in 1970, and ICERD is now the third most commonly ratified UN human rights treaty, with 177 states signed up. </p>
<h2>Australia and CERD – the background</h2>
<p>The CERD last reviewed Australia’s record in <a href="http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CERD%2fC%2fAUS%2fCO%2f15-17&Lang=en">2010</a>. </p>
<p>The recommendations made in 2010 contained 21 specific actions for the government. These included the recognition of Aboriginal and Torres Strait Islanders as First Nations Peoples, supporting the proper performance of the Australian Human Rights Commission, appointing a Race Discrimination Commissioner, and addressing Indigenous contact with the criminal justice system.</p>
<p>Like many other UN human rights bodies, in 2010 the CERD also recommended that Australia review its mandatory detention regime of asylum seekers, with a view to finding an alternative to detention and ensuring that the detention of asylum seekers is always a measure of last resort. </p>
<p>Another recommendation in 2010 was that Australia criminalise the dissemination of racist ideas and incitement to racial hatred or discrimination. </p>
<p>In this regard, Australia has formally limited its obligations by having a reservation to the relevant article of the treaty. Reservations allow states to commit to treaty obligations, but with caveats.</p>
<p>Despite criticisms of <a href="https://theconversation.com/au/topics/section-18c-7896">Section 18C of the Racial Discrimination Act</a> and suggestions that the federal parliament may even have exceeded its external affairs power by going further than was required by the ICERD treaty, the reality is that Australia lacks comprehensive criminal sanctions against incitement to racial hatred. Many other countries have such criminal laws in place. </p>
<p>On Tuesday in Geneva, the government will continue to seek to convince the CERD that it has made progress on these recommendations. It could refer to the appointment of a Race Discrimination Commissioner at the Human Rights Commission, for example Where it has not made good progress, it will be expected to provide explanations. </p>
<p>The last two reviews of Australia by the CERD in 2010 and 2005 were carried out in typical diplomatic mode – the review is called a “constructive dialogue”.</p>
<p>However, Australia’s review by the CERD in 2000 is famous in human rights circles, as there were unusually heated exchanges between Philip Ruddock and one of the committee members.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/with-a-seat-on-the-un-human-rights-council-australia-must-fix-its-record-on-indigenous-rights-86060">With a seat on the UN Human Rights Council, Australia must fix its record on Indigenous rights</a>
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</p>
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<p>The events were captured by Spencer Zifcak in his book, <a href="http://trove.nla.gov.au/work/11523647">Mr Ruddock goes to Geneva</a>. Subsequently, the then foreign minister, <a href="https://theconversation.com/lashing-out-at-the-un-is-not-the-act-of-a-good-international-citizen-38587">Alexander Downer</a>, said: </p>
<blockquote>
<p>… if a United Nations committee wants to play domestic politics here in Australia, then it will end up with a bloody nose. </p>
</blockquote>
<p>Australia has more recently also <a href="https://theconversation.com/lashing-out-at-the-un-is-not-the-act-of-a-good-international-citizen-38587">rejected the authority</a> of UN human rights bodies, but conversely has just <a href="https://theconversation.com/with-a-seat-on-the-un-human-rights-council-australia-must-fix-its-record-on-indigenous-rights-86060">been appointed to the UN Human Rights Council</a> and will take up its seat in 2018. </p>
<p>The Human Rights Committee, one of the aforementioned seven treaty bodies, is sometimes confused with the Human Rights Council – a completely separate UN human rights body. The Human Rights Council is the key UN human rights body, a more politicised entity.</p>
<h2>Who actually holds Australia to account?</h2>
<p>Being subject to reviews by international human rights bodies is important for the upholding of human rights in Australia – we are currently the only sestern democracy lacking a statutory or constitutional bill of rights. </p>
<p>Also, unlike many other states, we are not part of a regional human rights framework. </p>
<p>Several interested parties made <a href="http://tbinternet.ohchr.org/Treaties/CERD/Shared%20Documents/AUS/INT_CERD_NGO_AUS_29334_E.pdf">submissions</a> to the CERD and delegates are in Geneva for informal briefings with the committee members. They will inform the committee of the key concerns they have about the government’s progress. NGOs have already made the committee aware of the situation on Manus Island.</p>
<p>My research has found that such submissions can be quite influential and help shape the recommendations eventually delivered by the committee. However, mechanisms to ensure the government implements the recommendations are lacking.</p>
<p>Therefore, those in civil society with an interest in racial equality, NGOs, academics, trade unions and others should be aware of the recommendations and encourage the government to progress their implementation.</p>
<h2>What happens next?</h2>
<p>The CERD will finish its review of Australia today, which should be available to view via <a href="http://webtv.un.org/meetings-events/human-rights-treaty-bodies/">webcast</a>. </p>
<p>In a few weeks, the committee will hand down its concluding observations, containing recommendations for the Australian government.</p><img src="https://counter.theconversation.com/content/88162/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Fiona McGaughey previously received a bursary from Graduate Women (WA) and an Australian Postgraduate Award from the Australian government. </span></em></p>Australia’s track record on racial equality and tackling racism is under review – and the findings will have significant implications.Fiona McGaughey, Lecturer, Law School, The University of Western AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/859002017-10-19T05:47:42Z2017-10-19T05:47:42ZBy excluding Hannah Mouncey, the AFL’s inclusion policy has failed a key test<figure><img src="https://images.theconversation.com/files/190920/original/file-20171018-32338-18yk5cx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Eight teams will take to the field for the second AFLW season – but transgender woman Hannah Mouncey will not be among them.</span> <span class="attribution"><span class="source">AAP/Dan Peled</span></span></figcaption></figure><p>Hannah Mouncey is a transgender female who wants to play in the Australian Football League’s women’s competition (AFLW). Virtually every Australian jurisdiction says an attempt to stop her doing so would amount to discrimination. But instead of taking an inclusion-based, “unless there are compelling reasons not to” approach, the AFL waited until the day before the AFLW draft to announce that Mouncey was <a href="http://www.abc.net.au/news/2017-10-18/contradiction-in-the-hannah-mouncey-aflw-decision/9060968">ineligible to be selected</a>.</p>
<p>The decision to exclude Mouncey may well breach anti-discrimination law, and certainly contradicts the AFL’s <a href="http://www.sbs.com.au/news/article/2017/09/20/same-sex-marriage-afl-redesigns-logo-support-yes-campaign">public position</a> of embracing diversity and inclusivity.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"920171601714339840"}"></div></p>
<h2>How did the AFL reach its decision?</h2>
<p>In its announcement this week, <a href="http://www.afl.com.au/news/2017-10-17/afls-transgender-call-on-aflw-hopeful">the AFL claimed</a> to have been “guided by” the Victorian Equal Opportunity and Human Rights Commission’s <a href="https://www.humanrightscommission.vic.gov.au/home/our-resources-and-publications/eoa-practice-guidelines/item/1560-guideline-trans-and-gender-diverse-inclusion-in-sport-complying-with-the-equal-opportunity-act-2010">guidelines</a> on trans and gender-diverse inclusion in sport. </p>
<p>Victoria’s <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/eoa2010250/s71.html">Equal Opportunity Act</a> says sporting bodies must not discriminate against another person by excluding them from participating in a sporting activity. But, it also <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/eoa2010250/s72.html">provides an exception</a> that allows organisations to exclude a person if their “strength, stamina or physique is relevant”.</p>
<p>The AFL has relied on this provision to block Mouncey’s right to play. <a href="https://www.triplem.com.au/sport/afl/news/afl-releases-statement-on-hannah-mouncey-decision">It said</a> its subcommittee had:</p>
<blockquote>
<p>… carefully considered all the information provided by Hannah, as well as the available data on transgender strength, stamina, physique along with the specific nature of the AFL competition. </p>
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<p>The AFL was careful not to say what information Mouncey provided, and did not specify what the “available data” were or where they could be sourced. </p>
<p>The AFL also did not go into detail about how her strength, stamina or physique were relevant. Presumably, it relates to Mouncey being 190cm tall and weighing 100kg. But Mouncey has been legally and medically cleared to play handball by its governing body, and her doctors also provided evidence to support her case for inclusion in the AFLW. </p>
<p>There’s no doubt Mouncey’s physique is imposing. But, in women’s sport, she will be in good company. There are many examples of non-transgender women in Australian national teams who are of a similar stature and strength, such as basketballer Liz Cambage (who is 203cm and 98kg). </p>
<p>Anyone who has ever played a collision sport like AFL knows how hard it is to push a big player around, whether they are strong or not. The same goes for strong players of any size. You have to learn to deal with them in other ways, and the good players learn those techniques. And the AFLW is the elite level.</p>
<p>It is not clear how Mouncey’s “stamina” has been measured, or why or how the AFL regards it as significant. AFL is played on the wide open space of an oval. The smaller, fitter women will run rings around Mouncey.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/190987/original/file-20171019-1078-f78q2z.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/190987/original/file-20171019-1078-f78q2z.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/190987/original/file-20171019-1078-f78q2z.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=800&fit=crop&dpr=1 600w, https://images.theconversation.com/files/190987/original/file-20171019-1078-f78q2z.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=800&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/190987/original/file-20171019-1078-f78q2z.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=800&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/190987/original/file-20171019-1078-f78q2z.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1005&fit=crop&dpr=1 754w, https://images.theconversation.com/files/190987/original/file-20171019-1078-f78q2z.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1005&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/190987/original/file-20171019-1078-f78q2z.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1005&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Hannah Mouncey (left) will still play in Canberra’s AFL women’s competition.</span>
<span class="attribution"><span class="source">Supplied to the ABC / Hannah Mouncey</span></span>
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</figure>
<p>The subcommittee said its decision was also based on “the stage of maturity of the AFLW competition”. One can only speculate on what that means, particularly where the AFL has encouraged Mouncey to reapply again next year. It may suggest the AFLW players are not yet at a sufficient level of “strength, stamina or physique” to be able to play with or against Mouncey. </p>
<p>But, apart from being condescending and insulting to the current AFLW players, this statement also contradicts Mouncey being given permission to continue to play locally. She has been <a href="http://www.canberratimes.com.au/afl/afl-news/ainslie-coach-chris-rourke-surprised-at-afl-barring-transgender-player-hannah-mouncey-from-aflw-draft-20171017-gz2zoa.html">cleared to play</a> in Canberra’s AFL women’s competition, which is arguably of a lesser standard than the AFLW.</p>
<h2>A more transparent policy is needed</h2>
<p>No-one, including the AFL, is suggesting that Mouncey’s decision to transition to a woman is in any way motivated by an intention to play women’s sport. The AFL’s concern instead is expressed as a belief that she would have had an unreasonable physical advantage. </p>
<p>But where does the cut-off lie? Would another trans-female player under six feet tall and weighing less than 80kg have suffered the same fate? </p>
<p>The AFL and the subcommittee are careful not to go into any detail about what the perceived advantage is, nor why it is determined to be unreasonable. Instead it appears to amount to discrimination the Equal Opportunity Act, and the AFL’s actions are not subject to an exemption.</p>
<p>By referring only to the “strength, stamina and physique” formulation and not providing any further detail, the AFL and its subcommittee appear to be hoping they will avoid that characterisation.</p>
<p>The AFL Players Association also <a href="http://www.sportingnews.com/au/afl/news/players-association-hannah-mouncey-coach-hit-afl-transgender-decision-aflw/qezxgqp8c4oo1t16s2d18ocv2">criticised the league</a> for not having clear-cut transgender guidelines, and it does appear the AFL, via its apparently ad hoc subcommittee, has had to deal with Mouncey’s nomination on the fly.</p>
<p>More concerning, the AFL’s decision harks back to the discriminatory days of the 20th century and, more recently, now-discredited hyperandrogenism policies. </p>
<p>The AFL and its subcommittee don’t appear to have consulted other AFLW players or trans athletes in other sports. But they would do well to read the <a href="http://www.tas-cas.org/fileadmin/user_upload/award_internet.pdf">Court of Arbitration for Sport’s decision</a> regarding Indian runner Dutee Chand or the <a href="http://www.sportsintegrityinitiative.com/sports-longest-injustice-scheduled-demolition/">ten-year battle</a> for recognition by Canadian cyclist Kristen Worley, and relinquish the flawed science on the performance benefits of testosterone that so many sporting organisations have <a href="https://theconversation.com/fair-play-at-the-olympics-testosterone-and-female-athletes-60156">hidden behind for so long</a>.</p>
<hr>
<p><em><strong>Further reading: <a href="https://theconversation.com/fair-play-at-the-olympics-testosterone-and-female-athletes-60156">Fair play at the Olympics: testosterone and female athletes</a></strong></em></p>
<hr>
<p><a href="http://www.abc.net.au/4corners/after-the-game-promo/8477046">Recently publicised</a> athlete welfare issues bring to the fore the importance of sport adopting policies to include all members of the community.</p>
<p>The AFL may also be in breach of <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/eoa2010250/s16.html">Section 16</a> of the Equal Opportunity Act, which says that an employer (here, the AFL) must not discriminate against job applicants. Transgender people report challenges with securing <a href="http://www.sunypress.edu/p-5210-transgender-employment-experien.aspx">employment</a> and <a href="http://www.rollingstone.com/culture/news/trans-teen-homeless-americas-most-vulnerable-population-w504834">accommodation</a>, and if Mouncey has an opportunity to earn a living through her sport, she should be entitled to do so.</p><img src="https://counter.theconversation.com/content/85900/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Catherine Ordway is a member of Australian & New Zealand Sports Law Association.</span></em></p><p class="fine-print"><em><span>Allistar Twigg is a sports lawyer with SHG Lawyers, and is a member of the Australian & New Zealand Sports Law Association.</span></em></p>The decision to exclude transgender woman Hannah Mouncey from the AFLW may breach anti-discrimination law, and contradicts the AFL’s public position of embracing diversity and inclusivity.Catherine Ordway, Senior Fellow (Sports Law Masters), The University of MelbourneAllistar Twigg, Masters of Sport Law Student, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/850892017-10-05T05:26:02Z2017-10-05T05:26:02ZTrust Me, I’m An Expert: a lawyer, a biblical scholar and a fact-checker walk into the same-sex marriage debate…<p>Where should the line fall between protecting people’s right to hold religious beliefs and the right to be free from discrimination? </p>
<p>It’s a question that’s emerged several times as the same-sex marriage debate has unfolded in Australia.</p>
<p>“Freedom of religion is not absolute. And neither is anti-discrimination law. Both are rights, absolutely, but both have limitations - particularly where they impinge upon the rights of others,” University of Western Australia law lecturer Renae Barker says in an interview on The Conversation’s new half-hour podcast, Trust Me I’m An Expert.</p>
<p>On Trust Me, I’m An Expert, we ask academics to share their expertise with us, unpack the issues making headlines and explain the research in a way we can all understand. </p>
<p>In a world of endless opinions and hot takes, we’re aiming to bring you informed analysis and the research evidence from the world of academia. </p>
<p>Our first episode tackles the debate underway as Australia contemplates changing the Marriage Act to allow same-sex couple to marry.</p>
<p>Dr Barker, an expert on the relationship between religion and the state, explains what the law really says on secularism, religion and discrimination in the context of same-sex marriage. And she outlines some of complex legal issues that may emerge if it is legalised in Australia.</p>
<p>Here’s a snippet of the interview:</p>
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<figcaption><span class="caption">Video produced by the University of Western Australia. Listen to the full interview with Renae Barker on episode one of The Conversation’s new podcast, Trust Me, I’m An Expert.</span></figcaption>
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<p>“Should someone be permitted to refuse to provide a service where they don’t agree with the beliefs of the person they are providing the service to? That’s a conversation we have to have as a society. It’s going to need to be carefully discussed and debated and we need to be prepared for whatever the consequences of that may be,” she says in the full interview, featured on episode one of Trust Me, I’m An Expert.</p>
<p>“That’s going to need a mature, reasoned, polite, political debate – and I’m not sure we are having that just yet.”</p>
<p>In this episode of the podcast, we also asked University of Divinity biblical scholar Robyn J. Whitaker to detail what the Bible really says about human sexuality, in a historically grounded analysis informed by disciplines such as archaeology, history and social science. </p>
<p>And Jennifer Power, a La Trobe University researcher who has reviewed the major studies on outcomes for children raised by same-sex parents, fact-checks the oft-repeated claim that kids do best when they are raised by a mother and a father. </p>
<p>Trust Me, I’m An Expert is out at the start of every month. Find us and subscribe in <a href="https://itunes.apple.com/au/podcast/trust-me-im-an-expert/id1290047736?mt=2">iTunes</a> or wherever you get your podcasts.</p>
<p>You can read more about what the podcast is all about, and listen to our teaser episode, <a href="https://theconversation.com/trust-me-im-an-expert-a-new-podcast-from-the-conversation-84703">here</a>.</p>
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<p><strong>Music:</strong></p>
<p>Kindergarten by Unkle Ho, from <a href="https://www.elefanttraks.com/">Elefant Traks</a></p>
<p><a href="http://freemusicarchive.org/music/Blue_Dot_Sessions/Landsman_Duets/When_in_the_West">Blue Dot Sessions: When in the West</a>, from Free Music Archive.</p>
<p><a href="http://freemusicarchive.org/music/Podington_Bear/Electronic_1224/Bass_Rider">Podington Bear</a>: Bass Rider, from Free Music Archive</p>
<p><a href="http://freemusicarchive.org/music/Scott_Gratton/Intros_and_Outros/Scott_Gratton_-_04_-_Electro_Lab">Scott Gratton: Electro Lab</a> from Free Music Archive.</p>
<p><strong>Additional audio:</strong></p>
<p>Q&A on ABC TV, <a href="http://www.abc.net.au/tv/qanda/txt/s4624231.htm">The Misinformation Ecosystem</a>.</p>
<p><a href="https://www.youtube.com/watch?v=1IDF-8khS3w">CNN</a></p>
<p><a href="https://www.youtube.com/watch?v=3OG6itojBiI">WH.GOV</a></p>
<p><a href="https://www.youtube.com/watch?v=GGgiGtJk7MA">SkyNews</a></p>
<p><a href="https://www.youtube.com/watch?v=wNh6LgfTtcU">BBC Radio 5</a></p>
<p>Additional recording by Rhys Woolf.</p><img src="https://counter.theconversation.com/content/85089/count.gif" alt="The Conversation" width="1" height="1" />
In this episode of Trust Me I'm An Expert, we're wading into the same-sex marriage debate with experts on the Bible and the law, and fact-checking claims that kids do best with a mother and a father.Sunanda Creagh, Senior EditorLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/821902017-08-08T00:59:03Z2017-08-08T00:59:03ZAffirmative action around the world<figure><img src="https://images.theconversation.com/files/181263/original/file-20170807-25576-1vrldo5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Educafro, a Brazilian black activist movement, protested in 2012 to demand more affirmative action programs for higher education.</span> <span class="attribution"><span class="source">AP Photo/Eraldo Peres</span></span></figcaption></figure><p>As reports have surfaced of the Trump administration’s intent to <a href="http://time.com/4883793/justice-department-college-admissions-affirmative-action/">investigate affirmative action admissions</a> in higher education, the debate over whether and how race should be considered in college admissions has emerged with renewed vigor.</p>
<p>In the past four years, United States Supreme Court cases like <a href="https://www.oyez.org/cases/2013/12-682">Schuette v. Coalition to Defend Affirmative Action</a> and <a href="https://www.oyez.org/cases/2015/14-981">Fisher v. University of Texas-Austin</a> have addressed this debate head on. </p>
<p>In what The New York Times called “<a href="https://www.nytimes.com/2014/04/23/opinion/racial-equality-loses-at-the-court.html">a blinkered view on race in America</a>,” justices in the 2014 Schuette case ruled 6-2 (with Justice Elena Kagan recusing herself) that voters could eliminate affirmative action policies in state public education. Two years later, however, in the Fisher case, they ruled that the University of Texas-Austin’s affirmative action policy was constitutional, affirming that the goal of a diverse student body within selective colleges and universities is a “compelling interest” in the U.S. </p>
<p>Now it has emerged that President Trump’s <a href="https://www.nytimes.com/2017/08/02/us/politics/asian-americans-complaint-prompted-justice-inquiry-of-college-admissions.html">Justice Department will be investigating</a> a yet-to-be-decided complaint challenging Harvard University’s affirmative action admissions policies, brought by a coalition of Asian-American groups. </p>
<p>So, is affirmative action in higher education on its way out? If you look beyond the U.S. and take a global perspective, the answer is no.</p>
<h2>A global perspective</h2>
<p>Our research has shown that about <a href="https://www.crcpress.com/Affirmative-Action-Matters-Creating-opportunities-for-students-around-the/JENKINS-Moses/p/book/9780415750127">one-quarter of the world’s countries</a> have some form of affirmative action for student admissions into higher education. Many of these programs have emerged over the last 25 years. </p>
<p>These policies may go by various names – affirmative action, reservations, alternative access, positive discrimination – but all are efforts to increase the numbers of underrepresented students in higher education. </p>
<p>A wide variety of institutions and governments on six continents have programs to expand admission of students from minority groups on the basis of race, gender, ethnicity, class, geography or type of high school. Several use a combination of these categories.</p>
<p>And given that U.S. policies are older than most, much of the cutting-edge thinking on affirmative action is now coming from other parts of the world.</p>
<h2>Affirmative action around the world</h2>
<p>Though <a href="https://www.oyez.org/cases/1979/76-811">affirmative action policies as we know them</a> have been in place in U.S. higher education since 1978, they are not the oldest: <a href="https://www.routledge.com/Identity-and-Identification-in-India-Defining-the-Disadvantaged/Jenkins/p/book/9780415560627">India’s policies for lower-caste students</a> take that prize. </p>
<p><a href="https://www.press.umich.edu/1181733/next_twenty_five_years">South Africa’s many, and varied, alternative access programs</a> not only admit underrepresented students – especially black female students – but they also provide special courses and mentoring to facilitate those students’ success. </p>
<p>The French are even more reluctant than many Americans to consider race directly, but some selective institutions have increased students of color by <a href="https://www.theatlantic.com/international/archive/2012/04/one-french-schools-secret-for-making-affirmative-action-work/255612/">targeting neighborhoods or particular schools located in priority education areas</a>. Areas are classified as Zones d’Education Prioritaires – priority education zones – based on several criteria, including high percentages of immigrant students for whom French is a second language, students performing below grade level and low-income students. Students from these zones are eligible to compete to be part of special admissions programs, which are designed to give them greater access to selective higher education.</p>
<p>India is less coy about who is being targeted, coining the rather blunt term “other backward classes” as an official designation for one set of recent beneficiaries of affirmative action in higher education. India continues to recognize the importance of caste discrimination, but also <a href="https://www.routledge.com/Identity-and-Identification-in-India-Defining-the-Disadvantaged/Jenkins/p/book/9780415560627">includes economic criteria</a> when defining other backward classes. They exclude, for example, individuals whose family income or property exceeds certain limits. </p>
<p><a href="http://www.bbc.com/news/world-latin-america-19188610">Brazil has been developing affirmative action programs</a> in its most prestigious public universities over the past two decades. The issue is often framed by human rights and social justice concerns; the Brazilian government first introduced the potential need for affirmative action as a “right thing to do” after years of denial of racial inequalities in the country.</p>
<h2>Beyond race</h2>
<p>Whereas the earliest forms of affirmative action focused on race and ethnicity, programs that started more recently are likely to include women. The inclusion of women has been particularly pervasive in the wave of policies that emerged around the world in the 1990s and 2000s. Affirmative action for women is now <a href="https://ejournals.bc.edu/ojs/index.php/ihe/article/view/5672">the most prevalent form of affirmative action</a> for students in higher education. </p>
<p>Countries that have some kind of affirmative action related to gender in higher education admissions are now <a href="https://www.crcpress.com/Affirmative-Action-Matters-Creating-opportunities-for-students-around-the/JENKINS-Moses/p/book/9780415750127">spread across world regions</a>, and include eight countries in Africa, seven in Europe and four in North America and the Caribbean.</p>
<p>Affirmative action based on geography (the place a student comes from) appeals to policymakers reluctant to give race, ethnicity or caste such a prominent and explicit role. Such policies are now catching on around the world: In addition to France, universities in <a href="http://www.ugc.ac.lk/downloads/admissions/local_students/Admission%20to%20Undergraduate%20Courses%20of%20the%20Universities%20in%20Sri%20Lanka%202011_2012.pdf">Sri Lanka</a>, for example, use geographic district as a targeted category because it’s less controversial than ethnicity or language.</p>
<h2>Looking beyond US borders</h2>
<p>In short, affirmative action is alive and well – and on the rise – around the world. Indeed, some of the most creative discussions and innovations are happening <a href="https://gemreportunesco.wordpress.com/2017/05/01/growing-demand-for-higher-education-puts-affirmative-action-in-the-spotlight/">outside the United States</a>.</p>
<p><em>This is an updated version of an <a href="https://theconversation.com/affirmative-action-should-be-viewed-in-global-context-33618">article</a> originally published on Nov. 13, 2014.</em></p><img src="https://counter.theconversation.com/content/82190/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michele S. Moses receives funding from the Fulbright Scholar Program.</span></em></p><p class="fine-print"><em><span>Laura Dudley Jenkins receives funding from the Fulbright Scholar Program.</span></em></p>‘Positive discrimination’ policies around the world are on the rise. What might other countries teach the U.S. about attaining racial, economic and gender equality in higher education?Michele S. Moses, Professor of Educational Foundations, Policy and Practice, University of Colorado BoulderLaura Dudley Jenkins, Professor of Political Science, University of Cincinnati Licensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/795582017-07-14T16:24:01Z2017-07-14T16:24:01ZHow risky are you? Why insurance works better with less discrimination<figure><img src="https://images.theconversation.com/files/177844/original/file-20170712-9330-1d9utyv.jpg?ixlib=rb-1.1.0&rect=189%2C63%2C5637%2C3413&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/athlete-walking-highline-slackline-tight-rope-516415948?src=KYgR1puIG1XqleeBolA2jw-3-34">Edu Silva 2ev/Shutterstock</a></span></figcaption></figure><p>Discrimination is a great taboo of our times, and yet one huge industry gets away with it every day. The insurance sector looks at us as risk with legs. It puts us into groups, and if we are in a group deemed riskier, we have to pay more. It’s even written into law. Anti-discrimination legislation usually <a href="http://www.legislation.gov.uk/ukpga/2010/15/schedule/3/part/5">includes exemptions</a> for insurance pricing. </p>
<p>Behind this approach lies the fear of an economic phenomenon known as “adverse selection”. In insurance terms it refers to the idea that you are more likely to buy insurance if you think you are going to need it. </p>
<p>This happens when insurers are not allowed to discriminate and the cost of risk has to be spread among the entire group. It means that insurance becomes a better deal for higher-risk people. Further down the line, the conventional wisdom is that this leads to higher average prices and fewer people insured – a bad outcome for insurers and society.</p>
<p>But is that conventional wisdom faulty? Thus far it has justified the insurance industry’s ability to charge more to some people for the same product. That may not always be justified after all.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/177845/original/file-20170712-3192-slas0t.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/177845/original/file-20170712-3192-slas0t.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/177845/original/file-20170712-3192-slas0t.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=360&fit=crop&dpr=1 600w, https://images.theconversation.com/files/177845/original/file-20170712-3192-slas0t.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=360&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/177845/original/file-20170712-3192-slas0t.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=360&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/177845/original/file-20170712-3192-slas0t.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=452&fit=crop&dpr=1 754w, https://images.theconversation.com/files/177845/original/file-20170712-3192-slas0t.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=452&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/177845/original/file-20170712-3192-slas0t.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=452&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Living apart.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-illustration/excluded-group-business-concept-birds-on-460275331?src=dZEPHhsjtZ3MPHdN2IXzFQ-1-58">Lightspring/Shutterstock</a></span>
</figcaption>
</figure>
<h2>Loss coverage</h2>
<p>To explore this phenomenon, let’s look at a simple example on an island with a population of 10 people (and a curiously well-developed insurance industry).</p>
<p>With no bar on discrimination at all, an insurance company would set prices which matched risk. And so if eight of our island residents were low-risk and two were high-risk (let’s say they are genetically predisposed to illness), the premiums charged to each group would reflect their expected claims. </p>
<p><a href="https://books.google.co.uk/books?id=CXOuDgAAQBAJ&q=extant#v=onepage&q=census&f=false">Evidence suggests</a> that under that system, about half in each group would buy the insurance. The mix of higher and lower risks among the insured is the same as in the population. This means there is no adverse selection. It also means that half the population’s losses are compensated by insurance. We can call this a <a href="http://www.guythomas.org.uk/genetics/genetics.php">loss coverage</a> of 50%.</p>
<p>Now suppose our island’s curiously well-developed regulators stepped in to ban insurers from discriminating between higher and lower risks. Now they have to put all the islanders into one risk pool and charge the same premium to them all. </p>
<p>For insurers to break even, the pooled premium will need to be relatively expensive for the lower risks, leading fewer of them to buy – and it will be cheaper for the higher risks, leading more of them to buy. And so we have the dreaded adverse selection in play. </p>
<p>You can follow the pattern in the images below. Here, the different premiums are expressed as a figure between zero and one. On average, people in the second example are paying more for their insurance than before. And the number of people who buy is lower too (three, compared with five). These features – higher average price and lower numbers insured – are the classic features of adverse selection.</p>
<p>But wait. There is also a nice surprise. In the second example, with no discrimination but with consequent adverse selection, the loss coverage is now higher. That is, 56% of the island population’s expected losses are now compensated by insurance, compared with 50% before. The better outcome arises not <em>despite</em> adverse selection, but <em>because</em> of adverse selection. </p>
<h2>Tweaking the rules</h2>
<p>It’s not all plain sailing. If pooled premiums are set too high – so that lower risk people don’t bother with insurance at all – then adverse selection can be extreme and loss coverage plummets. But it seems from the above example that some limits on discrimination, leading to moderate adverse selection, can help. If we accept that the whole point of insurance is to compensate the population’s losses, then tweaking the rules of insurance to increase loss coverage seems a reasonable goal.</p>
<p>One way to do that is to make everyone buy insurance. That’s what we do for motorists, where the central goal is to protect other people and the need is the same for every driver. But what about life insurance? </p>
<p>Life insurance is very important for many people, but not for everyone. If you don’t have dependants, you probably don’t need life insurance – or perhaps your employer already provides it. Where individual needs vary so much, making everyone buy insurance doesn’t work well.</p>
<p>But if we leave people free to make their own choices, we can still tweak the rules to increase loss coverage. The key here is to allow only the level of discrimination in pricing which delivers the right amount of adverse selection. </p>
<p>The insurance industry <a href="https://www.abi.org.uk/news/news-articles/2011/03/european-court-of-justice-gender-ban-is-disappointing-news-for-uk-insurance-customers-says-the-abi/">complained</a> noisily when the EU stopped companies from applying different prices for men and women. But in truth this probably makes insurance work better, and so might limiting some other traditional exemptions. At present, insurers get almost a free pass from age and disability discrimination laws, on the grounds that discriminatory pricing is necessary to stamp out adverse selection. But if some adverse selection makes insurance work better – <a href="http://admin.cambridge.org/aq/academic/subjects/economics/finance/loss-coverage-why-insurance-works-better-some-adverse-selection?format=PB">as my argument suggests</a> – then we need to look at the exemptions again.</p><img src="https://counter.theconversation.com/content/79558/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Guy Thomas does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Insurers complain noisily when regulators step in to stop them charging more to some groups, but there might be a benefit to us all when a better balance is found.Guy Thomas, Honorary Lecturer in Actuarial Science, University of KentLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/726352017-02-24T02:06:40Z2017-02-24T02:06:40ZThe transgender bathroom controversy: Four essential reads<p><em>Editor’s note: The following is a roundup of archival stories related to transgender issues in education.</em></p>
<p>On Feb. 22, President Donald Trump’s administration <a href="https://www.nytimes.com/2017/02/22/us/politics/devos-sessions-transgender-students-rights.html">revoked protections allowing transgender students to use the bathrooms of their chosen gender identity</a>. The joint letter from the Justice Department and Education Department rescinds the May 2016 guidelines issued by former President Barack Obama.</p>
<p>This reversal further divides those who contend that <a href="http://www.washingtontimes.com/news/2017/feb/21/white-house-says-transgender-students-are-states-r/">these decisions should remain in the hands of individual states</a>, and those who believe that <a href="http://time.com/4330120/transgender-bathroom-equality/">gender identity should be federally protected as a civil right</a>. Also back in the spotlight: questions as to <a href="http://www.msnbc.com/msnbc/transgender-students-protected-under-title-ix">whether transgender students are protected under the anti-discrimination provision of Title IX</a>.</p>
<p>We’ve spoken with scholars from multiple disciplines around the world, who have weighed in on the social, psychological and political issues impacting transgender students. Here’s what you need to know.</p>
<h2>Why the bathroom controversy?</h2>
<p>In 2014, the Department of Education’s Office for Civil Rights (OCR) <a href="http://www.msnbc.com/msnbc/transgender-students-protected-under-title-ix">issued a document</a> that, among other things, clarified the federal civil rights protections of transgender students:</p>
<blockquote>
<p>Title IX’s sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity and OCR accepts such complaints for investigation.</p>
</blockquote>
<p>Why then, have school bathrooms become the center of the transgender civil rights movement?</p>
<p>The March 2016 “bathroom bill” in North Carolina played a big part. Banning people from using public bathrooms that don’t correspond to the biological sex listed on their birth certificates, the bill catapulted transgender rights into the national spotlight. Alison Gash, a professor of political science at the University of Oregon, breaks down <a href="https://theconversation.com/whats-the-backlash-against-gender-neutral-bathrooms-all-about-57028">why there was such a backlash on both sides of the aisle</a>.</p>
<p>At the heart of the debate is a very real fear of violence. Gash explains <a href="https://theconversation.com/explainer-why-transgender-students-need-safe-bathrooms-50831">why transgender students need “safe” bathrooms</a>:</p>
<blockquote>
<p>Studies show that transgender students could be harassed, sexually assaulted or subjected to other physical violence when they are required to use a gendered bathroom. One survey… found that 68 percent of participants were subjected to homophobic slurs while trying to use the bathroom. Nine percent confronted physical violence.</p>
</blockquote>
<p>And why are bathrooms separated by sex in the first place? To put the gender-neutral controversy in perspective, Terry S. Kogan of the University of Utah writes on <a href="https://theconversation.com/how-did-public-bathrooms-get-to-be-separated-by-sex-in-the-first-place-59575">the origins of gendered bathrooms</a>, a convention that came about as part of the now-discredited – and extremely sexist – “separate spheres” ideology of the early 1800s.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/158317/original/image-20170224-23004-haug3r.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/158317/original/image-20170224-23004-haug3r.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/158317/original/image-20170224-23004-haug3r.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/158317/original/image-20170224-23004-haug3r.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/158317/original/image-20170224-23004-haug3r.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/158317/original/image-20170224-23004-haug3r.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/158317/original/image-20170224-23004-haug3r.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/158317/original/image-20170224-23004-haug3r.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Annie Smith stands at the door of a gender neutral restroom at the University of Vermont in Burlington, Vt., Thursday, Aug. 23, 2007.</span>
<span class="attribution"><span class="source">Toby Talbot/AP Photo</span></span>
</figcaption>
</figure>
<h2>Trans-inclusive law</h2>
<p>While the debate still rages, there are plenty of reasons for hope. Genny Beemyn, Director of the Stonewall Center at the University of Massachusetts, Amherst holds <a href="https://theconversation.com/why-trans-rights-nationwide-are-only-a-matter-of-time-59509">an optimistic view on the eventual legal protections of transgender people</a>:</p>
<blockquote>
<p>I believe my research suggests that it is only a matter of time before trans people achieve equal rights and wider social acceptance. While gender is different from sexuality, the history of the struggle for same-sex marriage in this country shows why this will be the case…</p>
</blockquote>
<p>Citing a natural demographic shift over time, Beemyn points out that prevalent, accepting attitudes among America’s youth will become the dominant opinion:</p>
<blockquote>
<p>Millennials generally see same-sex marriage as a basic civil rights issue and back it by a wide margin. Older generations have also become more supportive during the last decade, but by a much lesser degree. This means, demographically, the number of individuals who are supportive will grow over time, while members of older generations, who are generally less supportive, will pass away.</p>
</blockquote>
<p>Meanwhile, we’ve learned that <a href="https://theconversation.com/how-anti-lgbt-laws-foster-a-culture-of-exclusion-that-harms-states-economic-prosperity-71123">anti-LGBT legislation can harm the economic welfare of America’s communities</a>. And governmental policy and mental health professionals agree that so-called “conversion” and “reparative” therapies can be <a href="https://theconversation.com/banning-conversion-and-reparative-therapies-for-youth-one-step-forward-40026">extremely damaging to LGBT youth</a>.</p>
<h2>Acknowledging America’s transgender youth</h2>
<p>At the heart of this conversation lies the question of whether children can truly understand gender identity at a young age. Vanessa LoBue, a professor of psychology at Rutgers University Newark, found that before the age of five, children are quite flexible in their ideas of gender, but that <a href="https://theconversation.com/when-do-children-develop-their-gender-identity-56480">by the age of 10 most children have incorporated gender into their concept of identity</a>.</p>
<p>Diane Ehrensaft, Director of Mental Health at the Child and Adolescent Gender Center, University of California, San Francisco, asserts that <a href="https://theconversation.com/we-trust-children-to-know-what-gender-they-are-until-they-go-against-the-norm-42093">there’s a double standard when it comes to accepting children’s ability to self-identify gender</a>:</p>
<blockquote>
<p>In traditional theories, it is assumed that children clearly know their own gender by the age of six, based on the sex assigned to them at birth, the early knowledge of that assignment, the gender socialization that helps a child know how their gender should be performed and the evolving cognitive understanding of the stability of their gender identity. Yet if a child deviates from the sex assigned to them at birth or rejects the rules of gender embedded in the socialization process, they are assumed to be too young to know their gender, suffering from either gender confusion or a gender disorder.</p>
</blockquote>
<p>Despite these debates, there’s ample evidence that transgender students are very likely to be the victims of <a href="https://theconversation.com/bullying-linked-to-gender-and-sexuality-often-goes-unchecked-in-schools-55639">bullying</a> and <a href="https://theconversation.com/where-does-anti-lgbt-bias-come-from-and-how-does-it-translate-into-violence-61001">violence</a>. While researchers have identified some potential help in the form of <a href="https://theconversation.com/could-gay-straight-alliances-reduce-school-bullying-63174">gay-straight alliances</a> or <a href="https://theconversation.com/rethinking-how-we-represent-transgender-children-in-the-media-63722">media portrayals of transgender youths</a>, policy remains the most likely tool for effecting change.</p>
<p>David Miller, a doctoral student in psychology at Northwestern University, discussed <a href="https://theconversation.com/lgbt-equality-doesnt-exist-but-heres-how-to-fight-for-it-60977">the importance of educational policy in changing attitudes toward and extending protection for transgender students</a>. He referenced studies showing that policy and law can change not just the way people act, but the way people think as well.</p>
<h2>Transgender rights across the globe</h2>
<p>Trump’s reversal of the guidelines on bathroom use is the latest in an ongoing battle over civil rights for transgender individuals across the globe.</p>
<p>The World Health Organization has stated that <a href="https://theconversation.com/being-transgender-is-not-a-mental-illness-and-the-who-should-acknowledge-this-63182">it may no longer classify being transgender as a “disorder”</a> in the revised version of its International Classification of Diseases, due for release in 2018. Last year, the British government published a revised policy under which <a href="https://theconversation.com/british-prisons-must-now-recognise-gender-fluid-and-non-binary-inmates-63132">prisons must now recognize and respect inmates with fluid and nonbinary genders</a>. Also last year, the U.N. adopted <a href="https://theconversation.com/lgbti-vote-at-the-un-shows-battle-for-human-rights-is-far-from-won-62307">a landmark resolution on the “Protection Against Violence and Discrimination Based on Sexual Orientation and Gender Identity”</a> – though by a narrow margin.</p><img src="https://counter.theconversation.com/content/72635/count.gif" alt="The Conversation" width="1" height="1" />
Trump has reversed Obama’s landmark guidance allowing transgender students the bathroom of their choice. Here’s what you need to know about the controversy.Kaitlyn Chantry, EditorLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/734182017-02-23T02:01:48Z2017-02-23T02:01:48ZUber’s dismissive treatment of employee’s sexism claims is all too typical<p>Uber has suffered a spate of bad publicity in recent days after allegations of harassment and discrimination from a former software engineer. </p>
<p>In a blog post, Susan Fowler <a href="https://www.susanjfowler.com/blog/2017/2/19/reflecting-on-one-very-strange-year-at-uber">described</a> being propositioned by her supervisor within weeks of starting her job.
She complained to the human resources (HR) team. According to Fowler, the supervisor received a “warning and a stern talking-to” but no other discipline at the time because he was a strong performer and it was his “first offense.” Uber then offered her a choice: Transfer to another team or stay and risk a retaliatory performance review from the harasser. </p>
<p>Fowler also described a larger pattern of harassment, discrimination and retaliation. Others reported being harassed by the same manager, apparently contradicting what HR told her. Fowler’s performance review was downgraded, making her ineligible for a subsidized graduate program. When Fowler asked a director about “dwindling” representation of women in the division, he attributed it to their failure to step up and be better engineers. When Uber ordered leather jackets for engineers, they were ordered only for men. Apparently, there weren’t enough women to qualify for a bulk discount.</p>
<p>Fowler complained repeatedly. HR responded with escalating indifference, ultimately suggesting that Fowler herself was the problem. </p>
<p>After Fowler’s post went viral, Uber sought to distance itself from the incident and <a href="http://www.politico.com/story/2017/02/uber-eric-holder-to-investigate-sexual-harassment-235223">hired</a> former Attorney General Eric Holder to investigate. CEO Travis Kalanick <a href="http://www.cnbc.com/2017/02/19/uber-ceo-travis-kalanick-says-orders-urgent-investigation-after-allegation-of-harassment-gender-bias-at-company.html">issued a response</a>: </p>
<blockquote>
<p>“What she describes is abhorrent and against everything Uber stands for and believes in.” </p>
</blockquote>
<p>Fowler’s story – which Uber neither confirmed nor denied – is not unique in the tech sector, where women remain underrepresented. Women make up only <a href="http://www.huffingtonpost.com/2015/03/27/women-in-tech_n_6955940.html">12 percent of engineers</a>. These women face substantial <a href="https://scholar.google.com/scholar_case?case=8655598674229196978&q=built+in+headwinds&hl=en&as_sdt=6,38">headwinds</a>. In a <a href="https://www.elephantinthevalley.com/">survey</a> of women in the tech sector, 84 percent reported being told they were “too aggressive” and 59 percent said they were offered fewer opportunities than male counterparts. The majority also reported receiving unwanted sexual advances. And of those that reported the harassment, 60 percent were unhappy with the company’s response. </p>
<p>The Uber story provides a window into how companies have developed HR infrastructure to address anti-discrimination laws. These structures occupy a marginalized status within organizations. </p>
<p>As I learned while working as an employment lawyer at a large law firm, legal mandates rarely disrupt business objectives. Instead, they are largely viewed as an inconvenience delegated to HR. That explains, for example, why the CEO learned about Fowler’s allegations <a href="https://www.nytimes.com/2017/02/19/business/uber-sexual-harassment-investigation.html?_r=0">only after they went viral</a>.</p>
<h2>Symbolic structures</h2>
<p><a href="https://www.eeoc.gov/laws/statutes/titlevii.cfm">Title VII of the 1964 Civil Rights Act</a> safeguards an employee’s right to equal opportunity in the workplace. </p>
<p>It initially protected an employee against discrimination in hiring, pay, promotion and termination. Courts later expanded definitions of discrimination to <a href="https://scholar.google.com/scholar_case?case=14616838878214701501&q=meritor&hl=en&as_sdt=6,38">include harassment</a>. Title VII also protects employees from <a href="https://scholar.google.com/scholar_case?case=6815686592442149051&q=burlington+norther&hl=en&as_sdt=6,38">retaliation</a> for complaining about discrimination or harassment. </p>
<p>As sociologist Lauren Edelman documents in a recent <a href="http://press.uchicago.edu/ucp/books/book/chicago/W/bo24550454.html">book</a>, employers responded to civil rights laws by setting up complaint processes for employees. She argues that these processes are less focused on meaningfully assuring equal opportunity and more about creating the appearance of compliance. </p>
<h2>The ‘first bite is free’</h2>
<p>According to Edelman, <a href="http://press.uchicago.edu/ucp/books/book/chicago/W/bo24550454.html">courts have become complicit</a> in this development, crediting employers for superficial procedures without assessing whether they actually work.</p>
<p>The Supreme Court’s decision in <a href="https://scholar.google.com/scholar_case?case=15103611360542350644&q=faragher+v.+city+of+boca+raton&hl=en&as_sdt=6,38">Faragher v. City of Boca Raton</a> is a case in point. The case gives employers a defense in harassment cases if they took reasonable measures to prevent and correct harassment and the victim unreasonably failed to make use of internal complaint mechanisms. </p>
<p>However, courts don’t require employers to do very much to satisfy the defense. Merely adopting and distributing a policy <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=267088">gets an employer credit,</a> as does adopting an investigation process. Courts do not require employers to take strong disciplinary action against the harasser. Rather, they need only take action <a href="http://heinonline.org/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/upitt61&section=22">reasonably calculated</a> to stop the harassment – even if it does not. </p>
<p>In theory, a plaintiff would still have a viable claim if they used the employer’s complaint procedure. But <a href="http://heinonline.org/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/upitt61&section=22">one empirical study</a> found that even short delays in reporting the harassment can be considered “unreasonable” on the victim’s part. So if a victim waits a few months to report the harassment, and the employer goes through the motions of investigating and responding, the victim may be out of luck.</p>
<p>This doesn’t give employers much of an incentive to crack down on harassment. As one scholar observed, it essentially allows employers to escape liability for a harasser’s first offense. In other words, the “<a href="http://heinonline.org/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/upitt61&section=22">first bite is free</a>.” </p>
<p>This helps to explain Uber’s underwhelming response to Fowler’s initial complaint. Uber wasn’t really on the hook for the “first report” and did not have a strong incentive to punish the harasser. For Fowler’s harasser, that meant a “warning and a stern talking-to.”</p>
<h2>It’s just a ‘business decision’</h2>
<p>Lauren Edelman’s <a href="http://press.uchicago.edu/ucp/books/book/chicago/W/bo24550454.html">research</a> also documented a tendency among HR and lawyers to characterize civil rights obligations as “legal risks.” </p>
<p>This is consistent with how I talked to employers when I worked as an employment lawyer. I offered advice on “legal risks” while they were tasked with making “business decisions” on how to proceed.</p>
<p>However, this frame ultimately treats legal rules as one of many factors to take into account (or ignore) when employers make important decisions. </p>
<p>Consider Fowler’s situation. Uber evidently considered Fowler’s harasser to be an economically valuable employee that might be difficult to replace. Transferring the harasser to another team or terminating his employment likely would have been costly. By contrast, offering Fowler a transfer seemed a cheaper alternative, notwithstanding its effect on Fowler and the increased litigation risk. </p>
<p>When framed as a business decision, companies have a tendency to displace the victim of the harassment to preserve the profits associated with a high-flying harasser.</p>
<h2>Swatting mosquitoes while ignoring the termites</h2>
<p>Fowler’s allegations of sexual harassment <a href="http://www.nbcnews.com/tech/tech-news/uber-s-handling-susan-fowler-scandal-will-determine-it-fate-n723596">have received</a> <a href="http://nymag.com/selectall/2017/02/susan-fowler-alleges-sexual-discrimination-against-uber.html">a lot</a> of <a href="http://www.recode.net/2017/2/21/14673658/uber-travis-kalanick-susan-fowler-diversity-sexual-harassment">press attention</a>, but in many ways her allegations of systemic discrimination and retaliation were more troubling. </p>
<p>The director’s comment that women weren’t stepping up. The altered performance evaluation that cost Fowler a spot at grad school. The leather jackets. </p>
<p>HR was even less responsive to these complaints than to the harassment allegations and blamed the problem on Fowler herself. Why? They may not have believed her. But HR may have been limited in its capacity to fix the underlying problem. Yes, it could have paid for the leather jackets, addressed the doctored performance evaluations or scolded the director for his sexist comment.</p>
<p>But HR, on its own, is poorly situated to fix a business culture that is indifferent to (or in denial about) offering meaningful opportunities for advancement to women or other minorities in the workplace. As political scientist Frank Dobbin <a href="http://press.princeton.edu/titles/8909.html">has argued</a>, human resources professionals have long struggled to establish their legitimacy within organizations. They are rarely the locus of power within corporations, which instead resides in revenue-generating departments like engineering and sales, and in the executives that preside over the business. </p>
<p>HR advises. Business decides.</p>
<h2>Rooting out discrimination</h2>
<p>Business leaders make a Faustian bargain when they outsource civil rights compliance to HR and lawyers. They gain credible symbols of compliance. But they also lose touch with a business identity that includes doing right by their employees. As Mary Gentile argues in her book, “<a href="https://books.google.com/books?id=Y7yrKBVflgkC&printsec=frontcover&dq=giving+voice+to+values&hl=en&sa=X&ved=0ahUKEwjb_IiHnqTSAhVJ8mMKHU36A7wQ6AEIHDAA#v=onepage&q=giving%20voice%20to%20values&f=false">Giving Voice to Values</a>,” we lose touch with our shared values when we define work roles too narrowly.</p>
<p>In retrospect, Uber’s decision to side with the harasser over Fowler was a bad business move. All the bad press has reinforced existing narratives of Uber as a <a href="https://www.recode.net/2016/4/25/11586386/uber-driver-tips-settlement">bad</a> <a href="https://www.nytimes.com/2017/01/31/business/delete-uber.html">actor</a>. But the decision was also – to use a word that has fallen out of favor in the business vernacular – wrong. </p>
<p>Until business leaders view themselves as guardians of civil rights, those rights will continue to be framed as a tax on profits rather than important values to uphold.</p><img src="https://counter.theconversation.com/content/73418/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Elizabeth C. Tippett does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The escalating indifference with which Uber allegedly reacted to a software engineer’s harassment claims is the norm in the corporate world, where enforcing civil rights laws is seen as a tax on profits.Elizabeth C. Tippett, Assistant Professor, School of Law, University of OregonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/616602016-06-30T01:32:30Z2016-06-30T01:32:30ZAnti-discrimination law exemptions don’t strike the right balance between rights and freedoms<p>Prime Minister Malcolm Turnbull has committed to holding a plebiscite on whether Australia should legalise same-sex marriage by the end of the year if the Coalition is returned to government. </p>
<p>One of the reasons <a href="http://www.theage.com.au/comment/why-a-plebiscite-on-samesex-marriage-is-dangerous-and-divisive-20160414-go63vs.html">debate around same-sex marriage</a> is so highly charged is because it indicates a long-overdue shift in our cultural acceptance of LGBTI people, and a waning of the influence of the Catholic Church’s more conservative elements.</p>
<p>In light of this shift, Australia should also reconsider other remnants of its historic acceptance of institutionalised prejudice against LGBTI people – that is, the <a href="https://www.ag.gov.au/RightsAndProtections/FOI/Documents/Religious%20Exemptions.pdf">religious exemptions</a> to <a href="https://www.humanrights.gov.au/employers/good-practice-good-business-factsheets/quick-guide-australian-discrimination-laws">anti-discrimination laws</a>.</p>
<h2>What are the exemptions?</h2>
<p>The main religious exemptions to anti-discrimination law are set out in Sections 37 and 38 of the <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/sda1984209/s38.html">Sex Discrimination Act</a>.</p>
<p>These exemptions allow religious organisations to discriminate in a range of ways. This includes discrimination against a person on the basis of their sexuality in relation to the employment of teaching staff, and the provision of education and training. This is provided that the discrimination <a href="https://www.legislation.gov.au/Details/C2014C00002">is in</a>:</p>
<blockquote>
<p>… good faith in order to avoid injury to the religious susceptibilities of adherents of that religion.</p>
</blockquote>
<p>The justification most often provided for these exemptions is the need to protect freedom of religion, which is provided for under <a href="http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx">Article 18 of the International Covenant on Civil and Political Rights</a> (ICCPR). </p>
<p>However, this freedom is not absolute and must be balanced against other rights and freedoms – particularly the right to equality, which is protected under Articles 2 and 26 of the ICCPR.</p>
<p>The question we need to consider is whether our current system sets the right balance. What are the implications of permitting religious organisations to discriminate against LGBTI people?</p>
<h2>What is the right balance?</h2>
<p>Some religious exemptions, such as the one that applies to the ordination or appointment of <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/sda1984209/s37.html">priests and ministers</a>, are relatively limited in their scope and capacity, with little effect on overall equality in Australian society. However, the same argument cannot be made in relation to their operation of religious schools.</p>
<p>Religious schools make up a significant proportion of the education sector in Australia and, significantly, receive a <a href="http://www.cem.edu.au/our-schools/funding-of-catholic-schools/">considerable amount of state funding</a>. This gives the church enormous influence in Australian society, empowering it to impose its value judgements on people who do not share them.</p>
<p>The exemptions thus can have a serious effect on equality in Australian society. Under the current system, religious schools can (and do) threaten the employment of <a href="http://www.smh.com.au/nsw/gay-teachers-in-catholic-schools-hide-sexuality-20130124-2d9oa.html">teachers who identify as LGBTI</a> and <a href="http://www.theage.com.au/victoria/gay-students-human-rights-breached-by-catholic-schools-20160614-gpipiq.html">deny support to students who similarly identify</a>.</p>
<p>The situation for LGBTI students is particularly dire. Research has found that these young people experience far higher rates of bullying and depression than their peers, and are significantly more likely to <a href="http://www.tandfonline.com/doi/abs/10.1080/00918369.2014.1003009">attempt suicide as young adults</a>. Schools that endorse prejudicial values <a href="http://jss.org.au/wp-content/uploads/2015/10/NSS.pdf">have been found to exacerbate</a> negative feelings for LGBTI students. Supportive school environments can make a difference to these appalling statistics. </p>
<p>By allowing this discrimination to continue – supported by state funding – Australia is sanctioning the denial of equal rights to vulnerable young people.</p>
<h2>How do we approach the issue?</h2>
<p>Some people argue the appropriate response is for individuals to simply boycott these institutions. </p>
<p>Given the dominance of Christian schools within the education sector, the threat to employment for LGBTI teachers imposes a high cost on their right to equality. The option to boycott is patently inapplicable when it comes to schools. </p>
<p>And, given it is mostly parents who select schools for their children, LGBTI students are not free to boycott schools that practise discrimination. </p>
<p>Human rights are not absolute, especially when they clash with the rights of others. If religious organisations want to be free to continue to practise discrimination in the name of Christian values, at minimum they should not receive taxpayer funding to do so. </p>
<p>The importance of supporting LGBTI young people within the education system has been receiving a lot of attention lately, particularly due to both the success of, and controversy surrounding, the <a href="http://www.safeschoolscoalition.org.au/what-we-do">Safe Schools Coalition</a>. There have also been moves from within the Catholic education sector to review their approach to <a href="http://jss.org.au/wp-content/uploads/2015/10/NSS.pdf">supporting same-sex-attracted students</a>. </p>
<p>These are positive steps towards shifting the status quo in Australia. They help Australia move towards a society that better supports LGBTI young people regardless of where they go to school. However, these initiatives are voluntary and do little to protect the employment of LGBTI teachers. A more comprehensive approach is needed if we are going to move towards a truly equal society.</p><img src="https://counter.theconversation.com/content/61660/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Cristy Clark does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>As we take necessary steps towards shedding discrimination in relation to marriage in Australia, we must also consider removing it from our legislation.Cristy Clark, Lecturer in Law, Southern Cross UniversityLicensed as Creative Commons – attribution, no derivatives.