Here, the employment judge found that the claimant was entitled to lost wages for the period between her resignation in December 2018 and the start of her new position in September 2019 on the grounds that the claimant “suffered a substantial reduction in her mental wellbeing” as a result of improper treatment and discrimination from her employer in relation to the claimant’s onset of menopause and was thereby entitled to damages emanating from injury to feelings. The claimant alleged that her store manager discriminated against her for being a woman of menopausal age. The claimant had a long work history in retail, had received multiple awards for her excellent performance, and had gotten along with her store manager until the claimant’s onset of menopause. At that point, the store manager would frequently harass and humiliate the claimant in front of her colleagues and customers, specifically commenting about her menopause. The store manager’s disparaging treatment of the claimant weakened her mental state, resulting in a nervous breakdown in November 2018 that required her to begin anti-depressant treatment. Her doctors recommended that she work reduced hours. The store manager ignored this request and told the claimant that if she could not work her full hours, she would be forced to use vacation and sick time to account for the remainder of time. The store manager continued his harassment of the claimant until she resigned on December 4, 2018. After her resignation, the claimant continued to suffer from severe mental distress and anxiety as a result of her treatment and could not find employment until she accepted a part-time position at a charity shop in September 2019. The respondent employer did not contest the evidence presented by the claimant and was absent from the proceedings. The Employment Judge “found it established on the facts that the respondent, by the actings of [the store manager] for whom they were liable, had treated the claimant less favourably than he would treat someone who was not a female of menopausal age.” Furthermore, while the claimant had not made a constructive dismissal claim, the Employment Judge accepted claimant’s position that she “resigned as a result of the discrimination against her.”
Women and Justice: Keywords
Domestic Case Law
A. v. Bonmarche Ltd. (in administration) Employment Tribunal (Scotland) (2019)
Doe v. Howard Supreme Court of Victoria at Melbourne: Common Law Division (2015)
The plaintiff (under the pseudonym ‘Jane Doe’) brought proceedings to enforce the judgement of a United States district court against her former employers, Mr. and Mrs. Howard. The claims against them included involuntary servitude, forced labour, and human trafficking. Mr. Howard did not contest the claim and had since died. Mrs. Howard disputed the claim but failed to comply with court orders, then moved to Victoria and participated no further in the proceedings. The U.S. district court had found that the plaintiff was raped, sexually abused, and forced to work 80 hours or more per week, and entered a default judgment against Mr. and Mrs. Howard in the amount of US $3,306,468. The Supreme Court of Victoria held that all criteria for enforcing the U.S. judgment were satisfied. The fact that the U.S. judgment was a default judgment that could theoretically be set aside did not prevent it from being “final and conclusive.” While Mrs. Howard argued that the default judgment was procured by fraud and should not be enforced in Victoria, the Supreme Court found that Mrs. Howard had “no reasonable prospect of establishing” her defences, and entered summary judgment against Mrs. Howard for the equivalent of US $3,306,468, plus interest.
Nadeem Masood v. The State Lahore High Court (2015)
The appellant arrived at the respondent’s home armed with a pistol and raped her. The respondent, 16 years old at the time, was already 32 weeks pregnant with the appellant’s child due to multiple previous rapes. The respondent filed a suit against the appellant and gave birth to a daughter during the trial. The Trial Court found the appellant guilty and sentenced him to 20 years of imprisonment, to which he appealed to the Lahore High Court. Under the criminal laws of Pakistan, it is rape when a man has sexual intercourse with a woman with or without her consent when she is 16 years old or under. It is also rape when a woman gives consent due to fear of death or being hurt. The appellant argued the lesser offence of fornication, which is a crime committed when two people have sexual intercourse outside of marriage. The appellant argued that the Trial Court should not have convicted him of rape as the respondent had consented to the sexual intercourse. The offence of fornication is only punishable by imprisonment for up to five years with a maximum fine of ten thousand rupees, whereas rape is punishable by imprisonment for up to 25 years and/or a fine. The High Court held that since the respondent was 16 years old at the time of rape, it qualified as rape irrespective of the respondent’s consent. The High Court also expressed its concern over the Trial Court’s failure to award compensation to the child. Notably, the High Court held that children born because of rape would suffer “mental anguish and psychological damage” for their entire life, and should, therefore, be entitled to compensation. The appellant was ordered to pay a fine of one million rupees to the child born as a result of the rape, in addition to the compensation payable to the respondent.
Caeiro v. Tecnosolar S.A., Caso No. SEF-0013-000001 / 2015 Tribunal Apelaciones Trabajo 2ºT (Second Labor Court of Appeals) (2015)
The plaintiff sued the defendant in Civil Labor Court for damages suffered because of sexual harassment in the workplace. The plaintiff was an employee of the defendant for 13 years, always received good performance reviews, and was promoted. One of the company’s directors continuously harassed her in the workplace for over two years even though the plaintiff rejected his propositions. Over the course of those two years, the director sent several inappropriate text messages and emails to the plaintiff, to which she never responded. On one occasion, he sent an email with more than 70 pictures of sexual content to the plaintiff. After this incident, the plaintiff filed a formal complaint with one of the company’s executives who asked the director to apologize, but did not take any additional action. The plaintiff then quit her job and sued her employer for sexual harassment in the workplace. The Trial Court ruled in favor of the plaintiff and awarded her UR$ 880.272 pesos and a 10% administrative fine against the defendant. The defendant appealed, arguing that there was insufficient evidence to find for the plaintiff and that, if anything, the plaintiff had consented to the director’s advances. The Appeals Court analyzed all the unanswered harassing emails and messages sent to the plaintiff and determined that the appeal had no basis. The court determined that the director’s conduct qualified as sexual harassment in the workplace per Law No. 18.561 and that his conduct had effectively created a hostile work environment for the plaintiff, which had forced her to quit her job. Therefore, The Appeals Court affirmed the Trial Court’s award.
La demandante demandó al acusado en el Tribunal de Trabajo Civil por los daños sufridos por el acoso sexual en el lugar de trabajo. La demandante era empleada del acusado durante 13 años, siempre recibió buenas evaluaciones de desempeño y fue promovida. Uno de los directores de la compañía la acosó continuamente en el lugar de trabajo durante más de dos años, a pesar de que la demandante rechazó sus propuestas. En el transcurso de esos dos años, el director envió varios mensajes de texto y correos electrónicos inapropiados al la demandante, a lo que ella nunca respondió. En una ocasión, envió un correo electrónico con más de 70 imágenes de contenido sexual a la demandante. Después de este incidente, la demandante presentó una queja formal ante uno de los ejecutivos de la compañía que le pidió disculpas al director, pero no tomó ninguna medida adicional. La demandante luego renunció a su trabajo y demandó a su empleador por acoso sexual en el lugar de trabajo. El Tribunal de Primera Instancia falló a favor de la demandante y le otorgó UR $ 880.272 pesos y una multa administrativa del 10% contra el acusado. El acusado apeló, argumentando que no había pruebas suficientes y que, en todo caso, la demandante había dado su consentimiento a los avances del director. El Tribunal de Apelaciones analizó todos los correos electrónicos y mensajes de acoso no respondidos enviados a la demandante y determinó que la apelación no tenía fundamento. El tribunal determinó que la conducta del director calificaba como acoso sexual en el lugar de trabajo según la Ley N ° 18.561 y que su conducta había creado efectivamente un ambiente de trabajo hostil para la demandante, lo que la había obligado a renunciar a su trabajo. Por lo tanto, el Tribunal de Apelaciones confirmó la conclusión del Tribunal de Primera Instancia.
M.D. v. Prieta, Caso 312/2007 Tribunal Apelaciones Familia 1ºT (First Family Appeals Court) (2017)
A Trial Court awarded the plaintiff UR$4,500 for actual damages and UR$30,000 for emotional distress damages, resulting from the domestic violence committed by the defendant, her common-law husband. The defendant appealed, arguing that, beyond the plaintiff’s testimony and a medical diagnosis based on that testimony, there was no proof that he had committed acts of domestic violence. The defendant further argued that the plaintiff’s depression and anxiety were the consequences of a preexisting medical condition. Additionally, the defendant proposed on appeal that the law does not recognize emotional distress damages in a common law marriage because the duty of fidelity and the duty to do no harm only arise from marriage. Finally, the defendant said that the plaintiff had consented to the acts of domestic violence acts and, therefore, there could be no damages. The Family Appeals Court determined that domestic violence is a human rights violation: a victim cannot consent to be the victim of domestic violence and every person has a general duty to not harm another. The Family Appeals court also ruled that the medical and psychological diagnoses were not hearsay. The Family Appeals Court dismissed the appeal and partially affirmed the decision of the Trial Court, concluding that the defendant breached a duty to the plaintiff, that there was causation between the harm and the domestic violence, and that the plaintiff suffered damages. However, it reduced the award of actual damages from $4,500 to $2,250 due to the fact that the defendant had already made payments to the plaintiff.
Un Tribunal de Primera Instancia le otorgó al demandante UR $ 4,500 por daños reales y UR $ 30,000 por daños por angustia emocional, como resultado de la violencia doméstica cometida por el acusado, su marido en matrimonio común. El acusado apeló, argumentando que, más allá del testimonio del demandante y un diagnóstico médico basado en ese testimonio, no había pruebas de que hubiera cometido actos de violencia doméstica. El acusado argumentó además que la depresión y la ansiedad del demandante fueron las consecuencias de una afección médica preexistente. Además, el acusado propuso en apelación que la ley no reconoce los daños por angustia emocional en un matrimonio común porque el deber de fidelidad y el deber de no hacer daño solo surgen del matrimonio. Finalmente, el acusado dijo que el demandante había consentido a los actos de violencia doméstica y, por lo tanto, no podía haber daños. El Tribunal de Apelaciones de la Familia determinó que la violencia doméstica es una violación de los derechos humanos: una víctima no puede consentir ser víctima de violencia doméstica y cada persona tiene el deber general de no dañar a otra. La corte de Apelaciones de Familia también dictaminó que los diagnósticos médicos y psicológicos no eran rumores. El Tribunal de Apelaciones de la Familia desestimó la apelación y confirmó parcialmente la decisión del Tribunal de Primera Instancia, concluyendo que el acusado incumplió el deber del demandante, que había conexión entre el daño y la violencia doméstica, y que el demandante sufrió daños. Sin embargo, redujo la adjudicación de daños reales de $ 4,500 a $ 2,250 debido al hecho de que el acusado ya había realizado pagos al demandante anteriormente.
梁海媚与广东惠食佳经济发展有限公司、广州越秀区名豪轩鱼翅海鲜大酒楼人格权纠纷，广东省广州市中级人民法院 (Liang v. Guangdong Huishijia Economic Development Co. Ltd.) Intermediate People's Court of Guangzhou Municipality (2016)
The plaintiff sued the defendants for infringing upon her right to employment equality. The plaintiff alleged that the online advertisement posted by the defendants, to which Liang responded, required kitchen apprentices to be “men between the ages of 18 and 25.” The plaintiff further alleged that when she went to the restaurant, the receptionist informed her of the restaurant’s policy that “all employees in the kitchen should be men, even if a woman possesses the qualifications of a chef.” The plaintiff alleged that the defendants’ behavior violates Articles XII and XIII of the People’s Republic of China’s Employment Law, which provide that potential employees should not be discriminated against on the bases of ethnicity, race, sex, and religious beliefs. As relief, the plaintiff requested (1) an official apology from the defendants; (2) 21 Chinese yuan in damages for costs incurred by responding to the advertisement; and (3) 40,800 Chinese yuan in damages for emotional distress. The court of first instance held that the defendants’ actions constituted gender-based discrimination against the plaintiff. However, it found insufficient evidence for the plaintiff’s emotional distress and awarded 2,000 Chinese yuan in damages. It also denied Liang’s request for an official apology. Both the plaintiff and defendants appealed. Relying on the explicit requirement in the advertisement and the receptionist’s explanations that the candidate be a man, the Intermediate People’s Court held that the defendants’ exclusion based on the plaintiff’s gender was unlawful and unreasonable and constituted gender-based employment discrimination. With respect to relief, the Intermediate People’s Court held that under the Supreme People’s Court’s interpretations, emotional distress normally should not be compensated in monetary terms unless there are severe consequences. The Intermediate People’s Court held that compensation of 2,000 Chinese yuan was within the discretion of the lower court, and thus upheld the amount. The Intermediate People’s Court, however ordered the defendants to issue an official apology to the plaintiff in newspapers in the Guangzhou area.
就业歧视、性别歧视
原告诉称被告侵犯了她与男子平等的就业权利。原告称自己对被告的网上招聘广告进行了应聘。招聘广告要求厨房学徒须为“男性，18-25岁”。原告称在她去被告酒楼时，被告知公司规定厨房不找女工，即使具备厨师证也不行。原告称被告违反了《中华人民共和国劳动法》第十二条和第十三条的规定。法律规定，劳动者就业，不因民族、种族、性别、宗教信仰不同而受歧视。原告的诉讼请求包括（1）判决被告书面赔礼道歉；（2）判决被告连带赔偿原告因应聘产生的经济损失21元；（3）判决被告赔偿原告精神损害抚慰金40800元。原审法院判决被告的行为构成了对被告的性别歧视，但原告提交的证据不足以支持原告精神损害抚慰金的诉讼请求，并判决被告支付原告经济损失2000元。原审法院还驳回了原告要求被告书面赔礼道歉的诉讼请求。原告与被告均不服原审判决并提起上诉。根据被告招聘广告和前台工作人员对只招聘男性厨师的解释，中级人民法院认定被告对原告进行限制及排斥的行为不具有合法性，并且损害了女性应聘者的就业平等权。就赔偿问题，中级人民法院判决，在最高法院的解释下，因侵权致人精神损害，但未造成严重后果，受害人请求精神损害赔偿的，一般不予支持。原审法院酌情由被告赔偿原告精神损害2000元，属于原审法院自由裁量权范围，中级人民法院予以维持。中级人民法院判决被告向原告作出书面赔礼道歉。
EN v. KIC Human Rights Review Tribunal (2010)
The plaintiff was employed at a bakery. After working there for several years, the bakery was acquired by new owners, including the defendant. The plaintiff claimed that the defendant made unwanted comments and physical overtures in the workplace, eventually causing the plaintiff to leave the job. The plaintiff claimed that the harassment caused humiliation, injury to feelings, and loss of dignity. The Tribunal found that the plaintiff was the victim of unlawful sexual harassment under the Human Rights Act and awarded damages. The Tribunal also ordered the defendant to attend a training session on sexual harassment in the workplace. The Tribunal noted that the case “demonstrates the dangers of running a business without any understanding of the provisions of the HRA relating to sexual harassment, and with no insight whatsoever that some behaviours can be unwelcome to others no matter how innocent they may be thought by the perpetrator to be.”
Richardson v. Oracle Corporation Australia Pty Ltd Federal Court of Australia (2014)
Rebecca Richardson brought a sexual harassment suit against a former co-worker, Randol Tucker. Before Richardson left the company, Richardson and Tucker were colleagues at Oracle Corporation Australia. At trial, Ms. Richardson prevailed and was awarded $18,000 in damages for which Oracle Corporation Australia was vicariously liable. Ms. Richardson appealed, arguing that the award was inadequate. The High Court highlighted the difficulty in formulating awards of general damages in sex discrimination cases, but acknowledged that harassment can cause severe physical and mental strain. The Court noted that more significant awards were granted to the victims of workplace bullying than the victims of sexual harassment despite “comparable” damage caused by both types of conduct. Based on the distress Richardson experienced because of Tucker’s conduct, the Federal Court found that the $18,000 award was inadequate and substituted an award of $100,000 to compensate Ms. Richardson for psychological injury caused by the sexual harassment.
KKO 2003:76 Supreme Court of Finland (2003)
The issue was whether plaintiff was entitled to compensation for anguish in connection with intimate partner violence. A (male) had assaulted E (female) in E's home and on the staircase in a way that caused brain injury and severe traumatic stress. The District Court and the Court of Appeal sentenced A for an aggravated assault and ordered A to pay damages for pain and suffering for 20,000 Finnish marks. The Courts rejected demands for compensation on anguish. The question before the Supreme Court was about the amount of damages and if E was entitled to damages arising from anguish. The Supreme Court evaluated the pain and suffering as a whole and ordered A to pay 14,000 Euros of damages. In court practice (rulings KKO 1989:141 and KKO 1999:102) an assault has not been held as an act that justifies damages on mental anguish. According to Chapter 5 Section 6 of the Finnish Tort Liability Act (412/1974, as amended) (the "Tort Liability Act"), the provisions of the Tort Liability Act on personal injury apply also to damages for the anguish arising from an offense against liberty, honour or the domestic peace or from another comparable offense. The Court held that since A broke into E's apartment, E was entitled to damages arising from offense against domestic peace which could be seen causing anguish. The Court ruled that A had to pay damages for anguish in the amount of 500 Euros.