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Friday Workplace Briefing

Unconscious Bias is Discrimination – Latest Victorian Supreme Court Case

For this week’s Friday Workplace Briefing, Andrew and Nina cites a recent Victorian Supreme Court case as they discuss the unconscious bias that can be found in discrimination in the workplace.

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About the Hosts

Managing Principal - Victoria

Senior Associate - Workplace Relations

Episode Transcript

Andrew Douglas: Now the main topic?

Nina Hoang: Yes. Now the main topic.

Andrew Douglas: Now the main topic. So there we are. Okay.

Nina Hoang: Main topics are small this week.

Andrew Douglas: Austin Health and Tsikos, well, it’s actually Tsikos and Austin Health. It’s the other way around. Talk us through it.

Nina Hoang: So I think we’ve actually talked about this case before, but it involved a manager at Austin Health who discovered she was significantly underpaid in comparison to the 10, it was all managers beneath her who reported to her. I think one of them got paid at least $41,000 more than her. And she raised this with Austin Health, continually tried to negotiate, didn’t just expect to do it. She actually, took the time to say, “Look, this is what I’ve done. This is what I bring to the organisation. Can I get a pay rise?” And they just kept rebuffing her and saying, “Oh, you know, for all these certain reasons, you can’t.” But clearly the underlying reason was discrimination.

Andrew Douglas: Yeah. So look, the case is interesting, but what’s probably most interesting about this case, and actually the facts are very common throughout professional service as well. In professional services, you find even worse reasons. And I’ll use Nina and I as an example. Nina and I are doing the same function. Nina’s of a marrying age and of a child age, okay?

Nina Hoang: I do have a child.

Andrew Douglas: Yeah, you do have a child. Yeah. I’m just trying to be polite, okay? And so some employers would go, Nina’s about to become a principal, but we won’t actually make her a principal because…

Nina Hoang: Oh yeah.

Andrew Douglas: Yeah, because she’ll go off on maternity leave and then she’ll have a child and then she won’t be able to market and there’ll be a million other reasons why. Some of that, sometimes that’s a thoughtful process, a deliberate process. But more commonly it’s not a thoughtful process. It’s one of perception. And when we talk about discrimination, we talk about what’s called a characteristic of discrimination. So the protected attribute is gender, age…

Nina Hoang: Sex.

Andrew Douglas: Sex, all those things. And I, as the decision maker, have a narrative that sits around that which is that women at 30 always have children. That’s called a characteristic of an attribute. And in Australian society it’s incredibly common to have narratives or these stories around particular. Like Andrew’s too old to be a managing principal. Stop it, Nina.

Nina Hoang: I didn’t say it, you said it.

Andrew Douglas: But just stop it, alright. So age in Australia is seen as informative. Age throughout the Asian world is seen as experience. Okay. Do you see? They’re both characteristics because neither of them are necessarily true because you look at each individual as they come.

So what I want you to be wary of in decision making is this. You are faced with the circumstances where there’s an obvious disparity that exists, okay? What I want you to do is to take it as said there’s something wrong and then to interrogate back against it and be and say to yourself, look this could be in my brain. So in fairness terms is the work Nina doing the same as the work Andrew’s doing? Yeah. Alright, well then why would I pay, why wouldn’t I promote Nina and promote Andrew?

Or in my sense, why would I say Andrew’s not as successful at managing principal just because of his age? Okay. So this case goes one step further than all of that. Okay.

‘Cause this is the first time a court in Australia has acknowledged an underlying psychological feature which is notorious in HR and given birth to it as an actual proper argument. Remember, in discrimination law you don’t have to intend to discriminate. You just discriminate. But discrimination commonly occurs through unconscious bias, too often in professional services through deliberate and conscious bias.

But throughout the world, you know, if I look at some of the lessons I learned from my parents which were born from a discriminatory view they still reside inside me. You know, like people taking sick leave and I think they’re weak sort of thing, that comes from my Protestant upbringing. I don’t, I’m not like that now, but it’s still there in my brain. The beauty of the court decision is it puts front and centre unconscious bias.

Nina Hoang: Yeah. That it’s a real thing.

Andrew Douglas: It says it can be age, it can be what a person looks like. It can be a whole range. Remember in Victoria, what you look like is a protected attribute, physical appearance. And you’ll go into some firms and you’ll say this is like a model show. Well, they’ve clearly been working hopefully with unconscious bias, but they’re actually choosing people by what they look like. You can’t do that. And you can’t say to someone who doesn’t look like that, well, look, I don’t think you’re as good, when in fact the evidence is to the contrary.

Nina Hoang: Yeah. You got to remember to reverse onus as well. So what you said like you test your decision making is there objective evidence that supports the reason why you’re taking it?

Andrew Douglas: And just remember there are not just three or four protections, there are 16 of them to think about. So keep going back and whenever you see a disparity that exists, please test it. I know we’ve spent a bit of time, but it’s why we made this the topic of this week. Because for me, I think it is the thing that I’ve seen most commonly in my professional life as a managing principal and as a head of workplace group, we’re sitting there and we’re having an interview with somebody and I’ll get a comment like, look I’m not quite sure she’s ready for this. And I’ll go…

Nina Hoang: Or the, the interviewer will ask, you know, oh so what are your plans for the next couple of years? Like clearly targeted at something.

Andrew Douglas: Yeah. So that we’re talking about gender, sex and those sort of things. But I’ve also seen more recently times where those same decisions have been held with people who are older and saying, look, can you talk about your intention over the next two or three years? And it’s to say that you, you’re too old to be here, so what are you going to do? Whereas we just have to look at what is the performance. We have to stay with what is good.

Alright, well let’s move on. That’s a bit lecturing. I’m sorry we don’t normally lecture but I think it is an area of real growth in litigation. And now that they’ve grabbed a piece of language that’s commonly used in HR it will be one that will be captured by unions and plaintiff litigators. And it’s pretty hard to defend against ’cause it’s unconscious.

Nina Hoang: Well I think they’re definitely going to use it with all the new sexual harassment changes and the hostile work environment ’cause it’s much harder to, like you said, prove.

Andrew Douglas: That’s right. If you see something that’s wrong and it can be called unconscious bias you’re through the door. Whereas once the most people thought I had to prove the person wanted to do it, which was never the test. But now it’s very clear you don’t have to. Anyway, we better move on ’cause we’re going to run out time. Let’s go to the problem.

Nina Hoang: Alright, Unctuous Alibis (UA)…

Andrew Douglas: This was for you. I put this on.

Nina Hoang: I know, I realise. Is a dating website company. It hired Navel Gazers IT (NG).

Andrew Douglas: It’s late last night when I did it.

Nina Hoang: To develop an AI date matching service built on client profiles and a questionnaire. At a project management meeting between Sybil, CEO of UA, the sales managers of NG, Jeanie and Travis, an AI specialist from the University of Ballan (UoB).

Andrew Douglas: Travis. Ballan doesn’t have a university. I did choose one that wouldn’t serve us.

Nina Hoang: The proposal was thrashed out. UoB were part of a loose association bid with NG for the UA work.

They were not forming a joint venture. A lot of confusing facts.

Andrew Douglas: I know, yeah.

Nina Hoang: Travis looked like a child although he was 23 and and off the chart smart. Most people thought he was 13 and he dressed like a teenager. Yeah, like you. The UoB had received several complaints from Travis. UoB had failed to explain Travis’s skill and competence, and he had been subjected to unreasonable and hurtful questioning of his age, capability and maturity. His mental health was now precarious.

At the project meeting, Sybil smiled gently at Travis and asked if he could follow everything they were saying. She inquired who he reports to and what was their experience. When Travis said he headed the team, she chuckled and said what she later described as tongue in cheek. “Surely not.” Jeanie laughed with her.

Jeanie said we can do all the coding and IT engineering but Travis, who are you going to use to do the AI work? Travis was struggling to breathe and was close to tears. He was nationally recognised as an AI designer and builder of unique AI solutions. Anthony Albanese had presented him with a National Award for “AI Rising Star” only two months prior, and there was a full page spread in the Ballarat Courier two days later.

Andrew Douglas: Everyone reads the Ballarat Courier.

Nina Hoang: He looked at them and asked, “Have you read my CV? Do you know who I am?” Sybil said “Yes, but this is a big risk for us “and we need to know that the UoB has the maturity and experience to undertake this work. Travis, you don’t fill either of us with that confidence.”

Travis left. He drove back to the UoB, suffered a panic attack on the way and swerved into a tree off the road and was seriously injured. He suffered head injuries that will prevent him from ever working again. There is no doubt that both Sybil and Jeanie meant no harm and were unaware their comments were drawn from his childlike features and appearance.

They were unaware of that?

Andrew Douglas: We just did Austin Health.

Nina Hoang: Oh gosh.

Andrew Douglas: Okay. Would Travis have a discrimination claim? Yes is the answer to that. If so, against who? Well, because it’s not sexual harassment then it can only be between an employer and employee whereas sexual harassment could be against a contractor. Okay. Because there is an exception that exists there.

Nina Hoang: Is that right?

Andrew Douglas: I’m not sure, I’m making that up but I’m pretty sure that’s right. But the bottom line is, the only organisation and individuals that could be liable here are his own business, University of Ballan and whoever were his bosses. Okay.

Nina Hoang: That seems weird that a contractor could just like discriminate against me.

Andrew Douglas: No, look, it’s one of the reasons in our policy in the processes we have that when we take people out out to the client, or we place someone in a client we’ve got to provide you with a safe place of work away from any discriminatory behaviour and we have to shield you from it, ’cause they don’t have a liability under discrimination law. They have other liability but they don’t have it. We do.

Nina Hoang: Yes. Well we have it as well, so that makes sense.

Andrew Douglas: Yes. Okay. What are the protected attributes? So what are, there’s two obvious ones there which is age and general appearance.

Nina Hoang: Yeah, general appearance. Even in Victoria.

Andrew Douglas: Okay. But only in Victoria that’s true. Does it matter that no one intended? No, still liable. What would this claim be worth? Can I just say to you, this claim in general damages term is a massive claim. Okay. Because they’re putting a guy out there with a knowledge of the manner in which he’s been treated and providing…

Nina Hoang: ‘Cause he’s complained to them, yeah.

Andrew Douglas: So they’re on notice of it. So I think they’ve got a general damages somewhere between 90 to 150.

Nina Hoang: An economic loss of even more.

Andrew Douglas: An economic loss of two or three million. So the liability is all of them. And in general, can I just say in general protections claim because there’s no contractor relationship here to go against Jeanie’s business then, or sorry against Jeanie or the other, there’s not a contractor relationship at this stage. No, there’s not a cause of action in general protections either. ‘Cause there are two provisions around general protections which could get you through the door. But they’re much more about not protected attributes in this sense. Not discrimination. They’re much more about economic failings.

Nina Hoang: Yeah. And there’s not really a claim that he could make against his employer.

Andrew Douglas: No. Okay. So there you go. The general protection’s against his claim, he can make, ’cause it’s discrimination.

Nina Hoang: But they haven’t discriminated against him. His employer hasn’t…

Andrew Douglas: No, no. They’ve placed him in a position to breach discrimination legislation. So they’d have a claim in adverse action. It’s a workplace right. And it’s also a safety workplace right. They’ve placed him in a position which is unsafe. He’s raised the lack of safety.

Nina Hoang: He raised the complaint but they haven’t taken adverse action against him.

Andrew Douglas: No by continuing to require him to undertake work they have without putting control. He’s raised a safety complaint. Anyway….

Nina Hoang: I don’t know if he would win on that. They would, yeah. I would question that.

Andrew Douglas: He’d win. Okay. But we disagree on that. So I think we’re sending Nina off to Maurice Blackburn tomorrow to be reeducated. No, would Travis have a common law claim, who against, who would be responsible? And the answer is he’d have against them all.

Nina Hoang: Everyone. Yeah.

Andrew Douglas: And his claim is probably because there’s a, in most jurisdictions there’s a limit on general damages. But he would have close to the ceiling on general damages wherever it is, despite Oracle and Richardson saying the tariff is like general damages. That’s actually not what’s happened. So the general damages claim here would be closer to $300,000. And the economic and medical claim would again be bigger because the common law courts look at it slightly different to discrimination law. This is a $3 million claim. It’s a massive claim.

Nina Hoang: So in terms of division, would it be like 80% Sybil and Jeanie and 20% everyone?

Andrew Douglas: No, I think they have real trouble identifying which one gets what. But I reckon it’d split evenly between the group.

Nina Hoang: But the employer…

Andrew Douglas: The employer probably have a higher level, probably 50% to 60% the employer.

Nina Hoang: Even though they did less than the other people who were actually saying stuff.

Andrew Douglas: No, ’cause they kept putting them in the place of harm.

Nina Hoang: Oh no, I agree with that. So they agree that they should have some harm liability but surely the people’s actions who directly caused him to stress would have more of a liability?

Andrew Douglas: No, no. The person who placed him in harm’s way always gets the highest level of contribution.

Nina Hoang: Sucks to be an employer sometimes.

Andrew Douglas: Well it does. That’s part of the reason we’re having this discussion. So next one, would Travis have a workers compensation claim?

Nina Hoang: Yes.

Andrew Douglas: Absolutely. Yes.

Nina Hoang: Undeniably.

Andrew Douglas: Undeniably. And he’d have both, he’d have the psychological claim if he brought it beforehand. He’s got the physical and psychological sequently as well afterwards.

Did any person or company breach safety law responsibilities? And if so, who is the breach? Can I just say everyone here has a bit of risk but the employer has massive risk.

Nina Hoang: Because they were well aware of the psychological hazards and continued to ignore them.

Andrew Douglas: Yeah. And the others had a third party risk. The section 23. No, not the 26, not the control, we’ve done this before.

Nina Hoang: No, that was the employee.

Andrew Douglas: Section 23 risk, which is equivalent in other states. So it’s where you do something which could affect somebody else. And remember that goes throughout other more serious provisions as well. This is a very high risk safety prosecution that could come up. It’s one the regulator would jump at. Now because of its expanded hand but into the discrimination style breach that exists.

Nina Hoang: But would do you think it would meet the threshold for reckless endangerment?

Andrew Douglas: No, I don’t think it would.

Nina Hoang: Just huge breach.

Andrew Douglas: Yeah, huge breach. The last one may seem like an odd question.

Would the result be different in other states and territories in respect of safety? Actually it would be because you’d have trouble proving direct liability against the other two entities but against, in Victoria. Okay. Because it’s employer based. Whereas a PCBU test would capture Jeanie’s business which is Navel Gazers, because they were a loose affiliation and therefore to attract target the officers in that who could be really at risk.

So the answer is in Victoria, Navel Gazers would’ve a third party risk but not a primary risk. But every other state and territory because they’re a PCBU with the University of Ballan, both of them would have the primary risk and therefore the risk of penalty to Navel Gazers and their offices is significantly higher. That was a complex case, wasn’t it?

Nina Hoang: Yeah, it was. You made it very difficult.

Andrew Douglas: Yeah, it was 11 o’clock. What can I say? What I can say is that’s the end for the day. Thanks Nina.

Nina Hoang: Thank you for tuning in.

Andrew Douglas: Yeah, don’t forget we need thumbs up. And thanks for staying with us ’cause it’s a complex day.

Nina Hoang: Yeah. Thank you.

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