Unconscious bias led to lower salary for female compared to male equivalents upheld by Court of Appeal

On 11 April 2022 in?Tsikos v Austin Health?[2022] VSC 174, the Supreme Court of Victoria held that “unconscious bias” (resulting in women being paid less than their male counterparts) can (if proven) result in a finding of unintentional discrimination under?Victoria’s Equal Opportunity Act 2010?(Vic).

In this case, a manager in the Orthotic and Prosthetic Department at Austin Health complained of discrimination in relation to her remuneration over a period of seven years. She alleged a male colleague was paid far more than her and he had not been required to meet specific revenue targets unlike her.?

It was also alleged several other men within the Department had been paid more; and that some other women were unsuccessful at negotiating similar outcomes. The Supreme Court of Victoria held that taking all of these matters together, it was open to find the female manager’s sex was a substantial reason why her employer failed to pay her higher rates.? The employer appealed the decision

On 17 April 2023, an appeal to the Supreme Court of Victoria (Court of Appeal) was determined (see, Austin Health v Tsikos [2023] VSCA 82)?. The Court of Appeal found that the employer’s failure to engage in negotiations about salary with Ms Tsikos, where six male colleagues were paid above-agreement rates when she was not, constituted direct discrimination.

This decision (unless appealed to the High Court) means there may be an increase in unconscious bias cases in the future in areas relating to protected attributes under anti-discrimination legislation, including sex; disability; age; sexual orientation and other areas where systemic discrimination is often assumed but cannot be proven.