Under the recently amended Sex Discrimination Act, the medical profession risks attracting the scrutiny of the Australian Human Rights Commission unless sex discrimination, sexual harassment, sex-based harassment, and victimisation of complainants or witnesses are eliminated in its workplaces and training programs.
In 2020, the Respect@Work: Sexual Harassment National Inquiry Report found that Australia lags behind other countries in responding to sexual harassment, revealing 39% of women and 26% of men experienced sexual harassment in Australian workplaces in the previous five years. The report concluded sexual harassment is not only a women’s issue: “it is a societal issue, which every Australian, and every Australian workplace, can contribute to addressing”.
In December 2023 following legislative amendments to Sex Discrimination Act 1985 (Cth), the Australian Human Rights Commission (AHRC) was formally granted new powers to investigate and enforce an employer’s “positive duty” to take reasonable and proportionate measures to eliminate certain types of unlawful conduct. All workplaces, including hospitals, medical practices, and other health services, must now eliminate unlawful behaviours, such as direct or indirect sex discrimination, sexual harassment, sex-based harassment, and victimisation of complainants or witnesses.
Previously, the onus was on victims to file formal complaints about unlawful behaviours, but significant barriers deterred people from speaking up. Under the positive duty, senior leaders in health care, including board members, chief executive officers, medical directors, heads of departments, practice owners and other health care employers should heed the serious repercussions for bystander silence and lack of preventive action, regardless of whether a complaint is made.
It is also unlawful to subject a person to a workplace environment that is hostile on the ground of sex (here and here). This change to the law recognises the cumulative psychological harm associated with repetitive negative behaviour, such as offensive, intimidating or humiliating comments.
As employers frequently turn a blind eye to sex discrimination and sexual harassment, the new powers allow the AHRC to conduct investigations into suspected hostile work environments that condone misogynistic or misandrist attitudes and behaviours. Incidents commonly ignored by employers include failing to take notice of unwelcome touching, suggestive jokes, indirect or direct exclusion, unjustified criticism of people on the basis of sex, patronising or insulting remarks, intrusive questions about private life or physical appearance, and derogatory comments about sexuality, pregnancy, breastfeeding or menopause.
The medical profession risks AHRC scrutiny for several reasons
The suicide rate for male doctors is 1.41 compared with the general population, while female doctors commit suicide at 2.27 times the rate of the Australian population (here). As there is a strong association between workplace harassment and work-related mental injury, intractable high levels of suicide in doctors should raise a red flag.
Several high profile articles and books have recently been published in the general and medical media by Australian doctors on their experiences of gender bias (here and here), discrimination, sexual harassment or sexual assault. As one example, a female doctor-in-training published an account of a criminal sexual assault by a senior doctor supervisor concluding: “the system teaches you to be quiet”. This growing commentary is of concern, and may suggest the medical profession has made little progress in addressing high levels of sexual harassment and bullying widely reported by the national and international media back in 2015.
In relation to gender balance in medicine, marked gender disparities persist across many specialties, also raising red flags about possible sex discrimination. Although there has been gender parity in medical schools since the mid-1980s, Medical Board statistics show surgery currently comprises only 15% of women, intensive care and occupational and environmental medicine comprise about 24%, ophthalmology about 25%, and pain medicine and radiology just less than 30%. Subspecialties such as cardiology comprise only 15% of women, interventional cardiology 5%, orthopaedics 4% and interventional radiology less than 1%.
Although many colleges have developed diversity and inclusion plans, the Australian Medical Association has called for more action on tackling gender inequity in specialist trainee programs, also noting the medical profession’s slow progress on appointing women to leadership roles.
How can workplaces meet the new positive duty obligation?
In summary, the positive duty requires all workplaces to provide safe, respectful and inclusive environments, and to take reasonable and proportionate measures to eliminate unlawful conduct by themselves, their employees, workers, agents, and other third parties, such as customers, clients, patients, suppliers or visitors. The definitions of unlawful sex discrimination, sexual harassment, sex-based harassment, and hostile work environments should therefore be made known to all.
Unlawful behaviours not only occur in the workplace during work hours, but also after hours, during lunch breaks, when working remotely (from home or offsite), at staff drinks or staff functions (at work or somewhere else), between colleagues outside the workplace and outside work hours or during work-related travel.
Reasonable and proportionate measures by workplaces to prevent abuse may include (but are not limited to) implementing clear and comprehensive policies, providing comprehensive induction, and implementing a fair and confidential complaints-handling procedure to prevent victimisation of complainants or witnesses.
From 2024, the Work Gender Equality Agency (WGEA) will begin to collect data from organisations with 100 or more employees on workplace sexual harassment prevention initiatives.
What are the consequences of unlawful behaviours?
Under the Sex Discrimination Act, sexual harassment is a civil not a criminal offence, but criminal law of course applies for some offences, including physical molestation or assault, indecent exposure, sexual assault, stalking, and obscene communications. In a criminal case, the offender can be prosecuted and receive a jail sentence.
Under workplace law, employers can be held liable for wrongs committed by their employees. In fact, in most sexual harassment complaints heard by the AHRC or courts, compensation is paid by employers rather than individuals. There may be extensive fines for loss and psychological injury, but also hurt, humiliation and distress in victims and those who are victimised for reporting unlawful behaviours. Employers may also suffer reputation damage by being publicly named for failing to protect their employees.
Directors and officers of hospitals and other health services are also potentially liable unless they take reasonable steps to fulfil their corporate governance responsibilities and ensure their organisations allocate resources to appropriately to comply with the requirements of the Sex Discrimination Act.
Government health departments are not immune from inquiries or audits for their failure to address psychological and physical safety in health care workplaces. While there are many funding priorities in health care, human resources in health care must be adequately funded by government health departments to comply with federal and state legislation.
The culture of medicine requires urgent attention
The 2023 Medical Training Survey (MTS) conducted by the Medical Board revealed bullying, harassment, discrimination or racism was experienced or witnessed by over one-third of all trainees and over half of Aboriginal and Torres Strait Islander trainees, most commonly perpetrated by senior doctors. There have been calls for the MTS to include a specific question about sexual harassment in the future because of its differentiation from general harassment. Although gender differences were not reported in the MTS, the high voluntary participation rates by trainees suggest there is a hostile culture in some areas of medicine.
In response to the lack of improvement in the MTS findings over the past five years, the Medical Board and the Australian Medical Association have once again called for urgent attention to the culture of medicine by all for all.
In a recent positive step forward, “A Better Culture”, run by a coalition of health professionals, is gathering momentum “to eliminate bullying, to stamp out all forms of harassment, to have zero tolerance for racism, and to wipe discrimination off the face of the profession”. Over 460 individuals have joined its Reference Groups in a groundswell of volunteer support over the past 12 months.
I believe it is now time for the whole medical profession to join this groundswell and embrace our positive duty as a catalyst for unity not division and significant change not lip service. Unlawful conduct is a societal issue, which every doctor and every health care workplace must address.
This means doctors behaving badly must be called out and reminded about the new powers of the AHRC in no uncertain terms — from 2024, you are on notice, regardless of your gender.
If this article has triggered any discomfort, please make a long consultation with your independent and trusted general practitioner, the DRS4DRS program or the Doctors’ Health Alliance to talk about recovery from work-related mental injury.
Clinical Professor Leanne Rowe AM is a GP, a non-executive Director and co-author of Every doctor: healthier doctors = healthier patients.
The statements or opinions expressed in this article reflect the views of the authors and do not necessarily represent the official policy of the AMA, the MJA or InSight+ unless so stated.
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