A Court Recognizes Unconscious Bias in Sex Discrimination Claim

7 June 2023
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A recent ruling of the Victorian court of Appeal in the case of Austin Health v Tsikos marks a significant advance in the appreciation of how unconscious biases can serve to activate and embed discrimination in the workplace.

The complainant, Christina Tsikos had been employed as an orthotist/ prosthetist by Austin Health in 2009. The evidence established that men doing the same job were paid more. A number of men in various roles had negotiated salaries at above the statutory-agreement level. On six occasions over the years, Ms. Tsikos’ attempts to negotiate that her salary be increased above the minimum statutory level were simply rebuffed.

The case was decided under the Equal Opportunity Act 2010 (Vic). Relevantly the Act provides that:

In determining whether a person directly discriminates it is irrelevant (a) whether or not that person is aware of the discrimination or considers the treatment to be unfavourable.

The Court found that unconscious bias was a significant element in the unfavourable treatment which Ms Tsikos had received. The Court accepted that the bias had not simply originated in the decision-making process of one individual at a given point in time but had rather permeated the organisation and impugned its generalised methods of decision-making. On the facts of the case it observed ”the unfavourable treatment is an accumulation of acts and omissions by many individuals over a long period”.

This case signals a more nuanced treatment of discrimination complaints and grievances influenced now by a deeper understanding of the operations of unconscious biases. Employers will have to be more aware of the fact that unfavourable treatment amounting to discrimination can surface from systemic and cultural inequities. They need therefore to be addressed on a systemic basis.