Letter to the Australian Financial Review by the Sex Discrimination Commissioner:
Your article entitled “ASX gender targets raise legal danger” (July 5) argues that listed companies risk breaking the law by pursuing gender targets required by the Australian Securities Exchange.
This risk does not arise if the action taken by the company is a “special measure” under the Sex Discrimination Act 1984 (Commonwealth) (SDA).
Both targets and indeed quotas, are permissible under the SDA provided they are “special measures”. A “special measure” needs to be for the legitimate purpose of achieving substantive equality between men and women. It must be proportionate and its effectiveness should be monitored so that it can be stopped when the legitimate purpose has been accomplished. The Australian Human Rights Commission has issued guidelines about what constitutes special measures under the Sex Discrimination Act. These are available at www.humanrights.gov.au/legal/exemptions/sda_exemption/sda/guidelines1996.html#checklist.
Not only does the law permit workplaces, including listed companies, to set targets, it encourages organisations to do this for the purpose of achieving gender equality. It is imperative that we implement special measures to accelerate the progression of women at decision-making level. To do this listed companies should set numerical goals such as targets. Under the law, targets that meet the special measures test do not constitute discrimination against men.
The recent reforms to the ASX Corporate Governance guidelines are an important and necessary step if we are to remain internationally competitive, engage the best talent and claim that which is our birth right – namely, the equality of men and women in Australian society.
Elizabeth Broderick
Sex Discrimination Commissioner
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