Clearpoint Counsel | Empowering women through business — is the law a barrier or enabler?
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Empowering women through business — is the law a barrier or enabler?

29 Aug Empowering women through business — is the law a barrier or enabler?

In a bold move, a growing number of companies are taking gender equality into their own hands by positively discriminating in favour of females.

Controversial? Yes, some may say: why should we address inequality with discrimination? The answer: some discrimination is justifiable.

While state and federal anti-discrimination laws prohibit negative discrimination (e.g., laws that are oppressive on minority groups), these laws make exemptions for measures that promote substantive equality.

For example, some big companies, such as ANZ and Rice Warner, are adopting superannuation policies that positively discriminate in favour of women. These policies aim to increase the relative retirement saving rates of women compared to men.

And some new startups are defining their competitive edge by a business model that targets women.

Scale Investors is a female focused angel investor network. This network aims to equip women to become successful investors and support women entrepreneurs in early stage businesses.

Shebah is the “new Uber,” but only for women.

Are these new policies and business models justified under anti-discrimination laws?

We need to first start with evidence of the problem.

Taking the superannuation example, the Human Rights Commission documents that the average superannuation payout for women is a third of the payout for men — $37,000 compared with $110, 000. This is a big problem for women, for a group who already face serious income inequality and professional discrimination.

Businesses that adopt superannuation policies that take an affirmative action approach to this problem could be sued. But in most cases if the policy is reasonable, businesses can obtain an exemption from the regulators.

gender equality

Federal laws  

Under the federal sex discrimination laws, companies can adopt policies or practices that fall under the “Special Measure” category — things done to promote or realise substantive equality for members of a group with a particular attribute. A business can apply to the Human Rights Commission for formal recognition of a policy as a Special Measure or formal exemption from the legislation.

A Special Measure means an aggrieved person can still challenge the policy in court, an exemption distinguishes any right to bring such a challenge.

At the state level

Any affirmative action undertaken by a company or organisation must also comply with state anti-discrimination laws.

Most states’ anti-discrimination laws work along the same principles as the federal anti-discrimination laws.

In Victoria, a business may adopt an action or measure justified in promoting or realising substantive equality for members of a group. Its options are to declare it justified (carrying risk of a claim) or apply to the Victorian Civil and Administrative Review Tribunal for a formal 5-year exemption from the Equal Opportunities Act.

NSW law is different in that all actions or measures that favour members of any particular group must first be approved by the Anti-Discrimination Board NSW, unless a specific exemption already applies.


This trend of affirmative action by companies seeking to deliver societal benefits is not going away.

The reality is, companies are increasingly moving towards private self-regulation to address the growing areas of concern in business and the economy. B Corporation, the Global Reporting Initiative, Voluntary Carbon Offset, to name a few examples, show companies willing to contractually oblige the company to higher levels of standards.

Clearpoint is seeing a growing trend of responsible business, putting forward new and interesting challenges to overcome for a more just world.

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