Workplace surveillance as a form of discrimination

The equality impacts of workplace surveillance

While workplace surveillance might be growing in prevalence, studies are increasingly finding that surveillance affects people differently based on their protected characteristics. Using nationally representative survey data in the United States (US), Stark, Stanhaus and Anthony found that those who self-identified as women were far less likely to approve of the use of cameras with facial recognition in the workplace. ¹⁶ These findings did not reflect different views of privacy based on gender. ¹⁷ Rather, in the qualitative aspects of the study, women were more likely than men to express concern about being a data subject. This concern may reflect ‘the unwanted male gaze’ ¹⁸ and the link between harassment, discrimination and surveillance. ¹⁹ Building on these findings, Stark and others ‘speculate that women are particularly sensitive to the contextual nuances of such surveillance, including its tendency to reinforce existing power dynamics and asymmetries’. ²⁰

Again, Vitak and Zimmer found gendered differences in how workers perceive surveillance, drawing on a survey of US adults who worked from home during the COVID-19 pandemic. ²¹ In that study, particular differences were noted in how women viewed the collection of health data or monitoring for health purposes, with women expressing more concern at that type of surveillance. ²² The authors attribute this to the politicisation of women’s reproductive health, as well as the risk of discrimination arising from pregnancy and child-rearing at work. ²³ While women’s reproductive health may be less politicised in Australia than in the US, ²⁴ the risk of discrimination is likely to be similar across jurisdictions. ²⁵

Drawing on a mixed methods study of call centres in South Africa and the United Kingdom (UK), Ball, Daniel and Stride found that women showed greater concern than men regarding freedom from being listened to or watched in the workplace. ²⁶ Similarly, in a study of ‘Emotional AI’ or emotion-sensing technologies, Mantello and others found, based on a survey of international students, that emotional surveillance might lead to increased stress and anxiety for those who are disadvantaged at work, including on the basis of class, ethnicity and gender. ²⁷ For Ball and colleagues, then, concern for workplace environment privacy is a ‘gendered issue’. ²⁸

Concerns related to the gendered impact of surveillance pre-date new technologies, but are likely exacerbated by technological change. Drawing on an ethnographic study of a workplace that moved to a new, open plan and transparent glass office in the UK, Hirst and Schwabenland found that the increased visibility of the workplace meant ‘that being observed was a constant possibility’. ²⁹ This visibility had gendered consequences, and was seen by some women as being ‘uncomfortable or oppressive’. ³⁰ Men used the increased visibility of the office to rank and judge women’s attractiveness, including for job applicants attending interviews. ³¹ For the authors, ‘the building provided a space where it was much easier for men to exercise this kind of “male gaze”’, causing anxiety for some women colleagues. ³² The visibility and increased scrutiny of a transparent workplace pushed some women to ‘[engage] in detailed self-scrutiny and self-management’, including around dress, behaviour and how they navigated workplace spaces and bodily ‘discharges’. ³³ While a glass, open plan office is more low-tech surveillance than that occasioned by emerging digital tools, this study gives an insight into the gendered impacts of workplace surveillance, and the lengths that women might need to employ to mediate the gendered impacts of surveillance.

These studies illustrate that surveillance can exacerbate, perpetuate and widen workplace power disparities. ³⁴ The impacts of surveillance are most likely to be felt by those with the least power in the workplace, and surveillance and monitoring can disproportionately affect those with protected characteristics, including but not limited to women. Indeed, for women, workplace surveillance occurs in a context where sexual harassment, stalking and sexual violence remains widespread: ³⁵ the tracking and monitoring of workers should be evaluated in this context, ³⁶ where the ‘male gaze’ potentially enables sexual violence and harassment. The Australian Human Rights Commission’s Respect@Work report, informed by the 2018 national survey on experiences of workplace sexual harassment, found that 33 per cent of people who had been in the workforce in the previous five years had experienced workplace sexual harassment; this was more common for women (39 per cent) than for men (26 per cent). ³⁷ The Respect@Work report explicitly acknowledges the potential overlap between sexual harassment and the use of technology, including the use of surveillance devices to monitor and harass women. ³⁸ The report cites the story of Amara, shared with the Commission at a consultation:

Amara said that the CEO of the company would watch Amara via cameras on the production floor, and stalk her husband’s Facebook page. When the CEO could see that Amara’s husband was out of town, he would text her saying, ‘You’re home alone, need some company? I’ll bring dinner’. The CEO texted her constantly, and Amara would have to continually delete the messages so her husband wouldn’t see. ³⁹

There is a further risk that surveillance tools might be misused by managers or workers, in a way that enables discrimination or harassment. Surveillance, then, can be a tool for enacting discrimination and harassment. As reported in the Victorian Trades Hall Council (VTHC) submission to the federal House of Representatives Inquiry into the Digital Transformation of Workplaces, for example,

A young worker, working as a copywriter, … was required to be on zoom every hour she was working, even while she was on the phone or writing material as part of her work, so her employer could watch her work. Her manager separated her out into breakout ‘rooms’ and used the rooms to sexually harass and bully her. … She found the constant surveillance extremely intimidating and left her job without having another one lined up. ⁴⁰

Surveillance can therefore increase the harm of other workplace stressors, particularly for those who are already the most impacted by discrimination, inequality, and harassment. As the VTHC notes:

Secondary stress, combined with workplace surveillance, disproportionately harms women, workers with disabilities, workers without union representation, enforceable rights or secure contracts, migrants and other disadvantaged groups. For these workers, surveillance forms yet ‘another layer of mental health fatigue and burnout,’ bringing them closer to breaking point. ⁴¹

While those with protected characteristics are likely to be the most impacted by the effects of workplace surveillance, they are also more likely to work in workplaces where surveillance is ‘intense’ or widespread. ⁴² For those with disabilities, particularly ‘invisible’ disabilities, who may want to conceal their disability at work, or who do not want to request reasonable adjustments, ⁴³ surveillance can be particularly damaging: one worker, quoted in the VTHC submission, recounts:

I feel like I can’t take a break to go to the toilet or have a snack because it is all monitored. If I’m in pain from my disability I hide it because I don’t want to seem like I can’t do my job. ⁴⁴

As the VTHC concludes, ‘Given that so much of the harm of surveillance comes down to a “multiplier effect” of surrounding workplace stressors, surveillance-related stress proliferation amongst marginalised groups is a serious concern’. ⁴⁵

Overall, academic studies and inquiry submissions demonstrate the way workplace surveillance might exacerbate and amplify discrimination and inequality at work. However, there appears to be a noticeable absence of empirical scholarship addressing Australian workers’ experiences of workplace surveillance specifically; rather, most research has emerged from other countries like the US and UK. Further, while gender has been considered in a number of studies, there is limited scholarship considering the impact of surveillance across other protected grounds such as ethnicity, sexuality, disability and age, although workers with these characteristics are likely to also be disproportionately affected by surveillance. This represents a major gap in the literature.

Legal gaps and workplace surveillance: The potential role of discrimination law

Australian privacy law has significant gaps for regulating workplace surveillance. ⁴⁶ Federal privacy law generally exempts employee records and small businesses, ⁴⁷ and state-based regulation of surveillance devices is not well adapted for regulating new surveillance technologies and widespread workplace surveillance. ⁴⁸ The Victorian parliamentary inquiry into workplace surveillance has therefore recommended legislative reform, seeing existing laws as ‘ineffective’. ⁴⁹ The federal government has also committed to consulting on the employee records exemption, but legislative reform has proven slow.

While statutory privacy and surveillance laws lag behind workplace developments, scholars and advocates are considering alternative pathways for regulating or challenging workplace surveillance. ⁵⁰ For example, I have argued elsewhere that equity and equitable breach of confidence might offer one pathway for protecting employee data and privacy. ⁵¹ Equally, workplace health and safety laws might prove useful for addressing surveillance as a psychosocial risk. In Victoria, for example, the Occupational Health and Safety (Psychological Health) Regulations 2025 (Vic) have strengthened employers’ obligations to identify ⁵² and eliminate or reduce risks relating to psychosocial hazards as far as is reasonably practicable. ⁵³ While surveillance is not explicitly mentioned in the Regulations as posing a psychosocial risk, the studies above clearly indicate that surveillance can lead to increased workplace stress. Surveillance (particularly excessive or intrusive surveillance) therefore likely poses a psychosocial hazard in some contexts. ⁵⁴

Discrimination law might offer a further path for challenging workplace surveillance. Indeed, discrimination law offers claimants substantive rights, which might prove superior to the largely procedural rights available under privacy law. ⁵⁵ While surveillance often affects all employees, it has disproportionate impacts on those who do not fit the ‘ideal’ worker norm. It is possible, then, that surveillance might be challenged as a form of indirect discrimination. ⁵⁶ The Equal Opportunity Act 2010 (Vic) s 9(1) defines indirect discrimination as where:

a person imposes, or proposes to impose, a requirement, condition or practice –

In this case, the requirement, condition or practice might be the use of specific types of workplace surveillance. The contentious aspects of a claim of indirect discrimination would be whether surveillance (and that specific type of surveillance) is (1) likely to have the effect of disadvantaging persons with an attribute; and (2) reasonable.

In evaluating the first point – whether surveillance is likely to have the effect of disadvantaging persons with an attribute – the empirical findings in the literature above indicate that a claim may be able to be established, particularly in relation to gender. The studies cited above show that women in particular likely experience heightened stress from workplace surveillance, and heightened stress is likely to be a form of disadvantage. Ideally, though, studies would seek to examine Australian workers’ perceptions and experiences of surveillance, and map how these experiences differ across different protected grounds and attributes. There is a noticeable absence of empirical scholarship addressing Australian workers’ experiences, and considering the impact of surveillance across protected grounds such as ethnicity, sexuality, disability and age. Discrimination law claims are likely to be supported and enabled by such targeted scholarship and empirical insights. ⁵⁷

In relation to the second point – whether the surveillance is reasonable – the employer has the burden of proving that the requirement, condition or practice is reasonable. ⁵⁸ Whether a requirement, condition or practice is reasonable depends on all the circumstances, including:

a) the nature and extent of the disadvantage arising from the surveillance;

Given a meta-analysis has found that workplace surveillance offers limited productivity benefits, ⁶⁰ employers may need to find other justifications for workplace surveillance, particularly where it is intrusive, invasive or potentially excessive. Employers might well argue that surveillance is actually a measure for ensuring workers’ health and safety, including by reducing or preventing discrimination and harassment, as harassers might be deterred from such conduct knowing they are being watched, or organisations could identify problematic behaviour and intervene early. ⁶¹ This appears to be mostly an assertion of the benefits of surveillance. Writing about surveillance in public spaces, though, Koskela casts doubt on these claims that surveillance might prevent harassment, noting:

surveillance in practice is insensitive to issues that would be of particular importance to women. Video is unable to identify situations where a sensitive interpretation of a social situation is needed. Namely, the overseers responsible for surveillance … [ignore] more serious situations which they regard as ambivalent – such as verbal sexual harassment … . Most cameras are unable to interpret threatening situations, which are not visually recognizable, and cases of harassment are therefore left without notice. ⁶²

The ‘insensitivity’ of surveillance to issues of concern to women ⁶³ is further exacerbated by the gendered structure of surveillance: ‘most of the persons “behind” the camera are men [such as security guards and managers] and most of the persons “under” surveillance are women’, ⁶⁴ further enabling the unwanted ‘male gaze’. Surveillance is often ill-adapted for identifying and preventing harassment and discrimination; instead, surveillance can be used as a means of harassment. ⁶⁵ Overall, then, surveillance should not be seen as a ‘reasonable’ tool for preventing harassment or discrimination without additional, organisation-specific evidence of benefit.

Surveillance might also be challenged as a form of direct discrimination, at least in Victoria, where courts are showing a renewed willingness to better deal with pervasive, systemic bias. The Equal Opportunity Act 2010 (Vic) s 8(1) defines direct discrimination as being where: ‘a person treats, or proposes to treat, a person with an attribute unfavourably because of that attribute.’ Invasive or excessive surveillance is likely to be unfavourable treatment. The challenge is establishing that the treatment is because of an attribute where surveillance is applied across the workforce. That said, if managers use surveillance in ways that target certain people or groups or enable discrimination, it is likely to be far easier to prove that surveillance is because of an attribute.

Even a uniform surveillance policy might be shown, in some cases, to be because of an attribute. In the Victorian Court of Appeal’s decision in Austin Health v Tsikos, ⁶⁶ the claimant alleged both age and sex discrimination as she had been denied the opportunity to negotiate her pay over a period of seven years. Other, male, employees were paid above collective agreement rates, but Ms Tsikos was told she could not be paid above the agreement. In the earlier Supreme Court decision in Tsikos v Austin Health, Richards J described the case as ‘a complaint of systemic discrimination by a large organisation’, rather than a complaint relating to specific, isolated decisions by specific individuals. ⁶⁷ What drove or caused individual decision-making was therefore not the only matter the court could take into account in determining whether there was direct discrimination. Rather, the court could consider: that men were paid above-agreement rates, expert evidence of gender bias in the workplace, and Austin Health’s failure to call relevant managers to give evidence. ⁶⁸ Richards J’s approach was upheld in the Court of Appeal; indeed, the parties accepted that ‘although systemic discrimination is “usually” associated with indirect discrimination, … such discrimination can also fall within [provisions relating to direct discrimination]’. ⁶⁹ The Court of Appeal was aided in this interpretative exercise by the objectives of the Equal Opportunity Act 2010 (Vic), ⁷⁰ which include: ‘to encourage the identification and elimination of systemic causes of discrimination, sexual harassment and victimisation’. ⁷¹ Equally, where the use of surveillance reveals or reflects systemic bias or discrimination, it is possible that surveillance might be seen as a form of direct discrimination. This might occur, for example, if surveillance is used more or more intensively for some parts of the workforce than others, or in a way that impacts some groups more than others, and this use reflects systemic bias or discrimination.

A third possibility under discrimination law is to show that an organisation failed to meet their positive equality duty given the use of workplace surveillance. The Equal Opportunity Act 2010 (Vic) s 15(2) imposes a duty on employers and organisations to ‘take reasonable and proportionate measures to eliminate … discrimination, sexual harassment or victimisation as far as possible.’ The duty in Victoria is not directly enforceable by individuals, ⁷² but it might be raised in conciliation of a claim of direct or indirect discrimination. ⁷³

Conclusion

Workplace surveillance has a deeply ambivalent relationship with the advancement of equality. The evidence for surveillance preventing harassment and discrimination is slim; equally, there is strong emerging evidence that women and those with other protected characteristics feel surveillance more keenly than other colleagues, increasing and amplifying other forms of workplace stress. Surveillance tools can also be misused to enable harassment and discrimination.

This article has argued that employers and workplaces should be critical and cautious in deploying workplace surveillance. While strengthening workplace surveillance laws is a critically important next step, discrimination law can also play a role in enabling workers to challenge the use of workplace surveillance. In particular, this article has mapped, in a preliminary way, how workplace surveillance might be challenged as a form of direct or indirect discrimination. However, courts would be aided in adjudicating these claims by further empirical evidence of the impacts of workplace surveillance. There is a need for renewed scholarly attention on how Australian workers, particularly those with protected attributes, experience the effects of workplace surveillance. As surveillance becomes more widespread and invasive, the discriminatory impacts of workplace surveillance represent a critical area for scholarship and legal development.