Australia: Not all offensive behaviour is discrimination or sexual harassment

Not all offensive behaviour is discriminatory

We often focus on the headline discrimination cases such as DJ'S and Ms Fraser-Kirk, but lower level cases are just as instructive on practical aspects of avoiding discriminatory behaviour.

In a recent Federal Magistrates Court case, Ms Noble sued her manager, Mr Baldwin and her employer, RNP, for discrimination. She alleged that Mr Baldwin looked at her breasts whenever he spoke to her, regularly touched his genitalia in her presence, brushed himself against her breasts and other women's breasts, engaged in discussion of women's sexual desires and orientation, and suggested he employed women based on the size of their breasts.

The allegations of physical contact and looking at Ms Noble's breasts were borne out to a limited extent, and were not cancelled out by the fact that Ms Noble had sent some unsavoury emails herself and, after drinking at a work social function, had behaved inappropriately with the MD. Her behaviour did not indicate that it was such a "robust" work place that Mr Baldwin could think, or in fact any reasonable person would've thought, that his conduct was acceptable. A reasonable person in the circumstances would have expected Ms Noble to be offended.

On the other hand, brushing past other women's breasts was deemed not relevant as it was not sexual harassment of Ms Noble. Mr Baldwin touching himself was also not specifically directed at Ms Noble, and while potentially offensive, was not sexual harassment of her. Similarly, comments about other women's breasts were not sexual harassment of Ms Noble because there was insufficient evidence that the remarks were unwelcome.

Importantly, the Magistrate said that the legislation is not intended to make every remark of a mildly sexual character an instance of sexual harassment. However the comments regarding selecting employees based on breast size, clearly were demeaning and unwelcome to Ms Noble, and amounted to discriminatory or harassing behaviour.

Ms Noble had originally complained about Mr Baldwin's behaviour in 2005 and RNP had dealt with the complaint entirely appropriately, in a timely fashion, thoroughly and acceptably to Ms Noble. However, the Court felt that was not sufficient for the company to claim that it had taken "all reasonable steps to prevent" sexual harassment. RNP had not introduced relevant policies or training until sometime later, and Mr Baldwin's behaviour deteriorated again after a temporary improvement in 2005. RNP was therefore found to be vicariously liable for Mr Baldwin's conduct.

The Court was also not satisfied that Ms Noble had suffered substantial economic loss because of the discrimination and harassment: she had chosen to resign and had other issues in her life which had impeded her obtaining replacement employment. Since much of the conduct of which Ms Noble complained was not infact unlawful conduct, it was not possible for her to prove that her medical and drinking conditions were caused by the discriminatory conduct. As a result, Ms Noble was awarded $2,000 damages, and Mr Baldwin and RNP had to pay half of Ms Noble's costs in the case.

What can be learned from this case?

This case took five hearing days, and would have required a lot of preparation on both sides: the outcome could be seen as entirely disproportionate to the costs incurred.

For Ms Noble, the half of her costs she had to pay herself was probably more than the damages awarded - a rather pyrrhic victory. From RNP and Mr Baldwin's point of view, they saw off a large part of Ms Noble's complaint, but at very substantial cost (their own legal costs and half of hers).

RNP would have been in a much better position to resist the complaints if, after warning Mr Baldwin once, it had monitored his behaviour so that either his unattractive behaviour was avoided, or he moved on. RNP would also have been much better off if it had more to say about introducing anti-discrimination policies and related training.

Does your workplace have sufficient policies in place, or conduct anti-discriminatory training?

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.