As a feminist, I get depressed reading about tale after tale of women pursuing sexism cases against their former employers and not getting anywhere.
See cases in point:
1. Jordan Wimmers found not to be a 'persuasive witness' and that the sexist jokes that were sent her were simply 'in poor taste' and 'not unwanted'. I suspect that her case was not helped by the claim that her boss tried to run her over, and she was not able to prove (and the burden would have been on her to prove) that the women being brought in to meetings were prostitutes.
2. Anna Francis and Maureen Murphy lost their cases against Nomura Bank. They had brought a claim saying that they had been made redundant and claiming, amongst other things, that a male colleague had said to a female colleague 'Oh, you don't have your honkers out today I see'.
Reading newspaper cases is always difficult because journalists tend to focus on the more salacious aspects of the claim. It appears that the 'honkers' comment was made before the Ms Murphy had arrived at the firm and so one expects that she is not going to be able to rely on that comment as having adversely affected her. If this is ruled out, then what we are left with in terms of evidence is the comment that women should be at home cleaning floors. Of this, the Tribunal said:
“Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly where it is clear that no offence was intended. The comment made by a trader that women should be at home cleaning floors does not in isolation amount to an act of sex discrimination.”
The thing that Tribunals are heavily influenced by is whether the women concerned complain. This is because in the first instance, it is for the Claimant to show, on the balance of probabilities, facts from which a Tribunal could conclude that discrimination has occurred. This includes proving that the conduct in question was unwanted. If one does not complain about the conduct at the time it takes place, the Tribunal appears to infer that the conduct was not unwanted.
This point is important because many women going through something like this, do not complain about the conduct to their employers until they believe that they are being pushed out of their jobs or the situation has become intolerable. If there isn't a contemporaneous indication of lack of consent, there appears to be a hint that the claims are retaliation for i.e. being made redundant or something else that the employer has done to irk or annoy. Of course, many women do not complain at the time because they believe that it will adversely affect their jobs, especially when the person engaging in the conduct is their manager or someone in a position of authority over them and this fear is not unjustified. However, as the definition of sexual harassment includes the criteria that the conduct is unwanted the Claimant has to prove that that is the case and the best indicator of this is that the Claimant complains either to the alleged harasser or to her employer at the time the incidents occur.
One might think that keeping a record of events is going to be the clincher. It helps, but it will not be determinative of the case. Another problem is that Tribunals have to decide, if there is a stark contradition between two accounts of what happened, who is telling the truth.
3. Rosemary Corscadden also didn't complain at the time that she claims her boss was making advances. She did keep a record of events, but did not complain to her bosses until some years later. She had claimed that her boss had descibed running her team like a running a brothel with a team of prositutes. The Tribunal held that he had not made the comment and again appeared to infer that because she had not complained at the time, the comments were not unwanted.
There is something else going on here which may or may not be influencing Tribunals. Most of these newspaper cases involve, it is said, claims for millions of pounds. As Tribunals do not make injury to feelings awards of that order, the claims stem from any loss of earnings flowing from the alleged discriminatory act. As they will be earning a considerable sum of money it is possible to come up with figures like that, but it is a bit of a stretch. Most women don't earn anything like that and the incidents of the type described here, w0uld have, if successful, achieved four figure award, as opposed to a seven figure one for any injury to feelings caused by the comments. It may well be that the figures claimed create a lack of sympathy in the Tribunal in light of the type of case and the earnings of employees that they ordinary deal with.
Nevertheless, I take the view that these cases are starting to indicate something of an alarming 'green light'. Furthermore, if every woman who ever experienced harassment complained, the system would collapse and a radical overhaul would be required. Perhaps this is what we need to be encouraging more and more women to do.
The thing that Tribunals are heavily influenced by is whether the women concerned complain. This is because in the first instance, it is for the Claimant to show, on the balance of probabilities, facts from which a Tribunal could conclude that discrimination has occurred. This includes proving that the conduct in question was unwanted. If one does not complain about the conduct at the time it takes place, the Tribunal appears to infer that the conduct was not unwanted.
This point is important because many women going through something like this, do not complain about the conduct to their employers until they believe that they are being pushed out of their jobs or the situation has become intolerable. If there isn't a contemporaneous indication of lack of consent, there appears to be a hint that the claims are retaliation for i.e. being made redundant or something else that the employer has done to irk or annoy. Of course, many women do not complain at the time because they believe that it will adversely affect their jobs, especially when the person engaging in the conduct is their manager or someone in a position of authority over them and this fear is not unjustified. However, as the definition of sexual harassment includes the criteria that the conduct is unwanted the Claimant has to prove that that is the case and the best indicator of this is that the Claimant complains either to the alleged harasser or to her employer at the time the incidents occur.
One might think that keeping a record of events is going to be the clincher. It helps, but it will not be determinative of the case. Another problem is that Tribunals have to decide, if there is a stark contradition between two accounts of what happened, who is telling the truth.
3. Rosemary Corscadden also didn't complain at the time that she claims her boss was making advances. She did keep a record of events, but did not complain to her bosses until some years later. She had claimed that her boss had descibed running her team like a running a brothel with a team of prositutes. The Tribunal held that he had not made the comment and again appeared to infer that because she had not complained at the time, the comments were not unwanted.
There is something else going on here which may or may not be influencing Tribunals. Most of these newspaper cases involve, it is said, claims for millions of pounds. As Tribunals do not make injury to feelings awards of that order, the claims stem from any loss of earnings flowing from the alleged discriminatory act. As they will be earning a considerable sum of money it is possible to come up with figures like that, but it is a bit of a stretch. Most women don't earn anything like that and the incidents of the type described here, w0uld have, if successful, achieved four figure award, as opposed to a seven figure one for any injury to feelings caused by the comments. It may well be that the figures claimed create a lack of sympathy in the Tribunal in light of the type of case and the earnings of employees that they ordinary deal with.
Nevertheless, I take the view that these cases are starting to indicate something of an alarming 'green light'. Furthermore, if every woman who ever experienced harassment complained, the system would collapse and a radical overhaul would be required. Perhaps this is what we need to be encouraging more and more women to do.
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