Women and Justice: Keywords

Domestic Case Law

Israel v. Ben-Hayim Supreme Court (2005)

Gender discrimination

The respondent, the manager of the Postmen Department at the Benei Berak branch of the Postal Authority, was acquitted of sexually harassing and victimizing a temporary employee, but convicted of unbecoming conduct. The Civil Service Disciplinary Tribunal (the “Tribunal”) found that the respondent promised to a promotion to the complainant, that he had conducted a sexual relationship with the complainant, and that he tried to prevent the complainant from making a complaint against him, which stated that he visited her apartment for several months and had sexual intercourse with her against her will. As a result, the complainant felt exploited and humiliated. The Tribunal held that the State failed to prove that the respondent abused his authority. The Tribunal then approved the sentencing agreement that the parties reached, although it admitted it was lenient. On appeal by the state, the Supreme Court held that the respondent’s power to influence the professional future of the workers was considerable and that he held a position of considerable power over the complainant, who was 22 years old at the time of the conduct while the respondent was 20 years older than her, which added to the his control. It follows that the complainant consented to the sexual acts was given because the respondent abused his authority over her, and therefore it was not a voluntary and genuine consent but instead “prohibited consensual intercourse.” The Court stated that “abuse of authority” need not involve a direct threat; in sexual harassment cases such abuse may be “express or implied, direct or indirect” and is no less potent if it is “in a veiled manner.” The Court added a one-year suspension from any managerial position to the sentence imposed by the lower Tribunal, explaining that this still amounted to a lenient punishment for the offense committed.

Teresita G. Narvasa v. Benjamin A. Sanchez, Jr. Supreme Court of Philippines (2010)

Sexual harassment

The respondent was found guilty of grave misconduct for sexually harassing his co-workers and was dismissed from Government service. The appeals court modified the ruling, finding him guilty of simple misconduct for which dismissal was not warranted. The Supreme Court reinstated the finding of grave misconduct, finding that the respondent’s actions were intentional, and since this was the third time he had been penalized for sexual harassment, dismissal was warranted.

Terranova Homes & Care Ltd v Service and Food Workers Union Nga Ringa Tota Inc Court of Appeal of New Zealand (2014)

Gender discrimination

The work of caring for the elderly is “predominately performed by women.” Caregivers employed by Terranova alleged that both male and female caregivers were being paid less “than would be the case if caregiving of the aged were not work predominantly performed by women.” Terranova appealed the judgment of the Employment Court. On appeal, Terranova argued that the Act referred specifically to equal pay, rather than pay equity. The Court of Appeal rejected their argument, stating that “Pay equity is about equal pay. It is equal pay for work of equal value.” The Court relied on 3(1)(b) of the Equal Pay Act which “requires that equal pay for women for work predominantly or exclusively performed by women, is to be determined by reference to what men would be paid to do the same work abstracting from skills, responsibility, conditions and degrees of effort as well as from any systemic undervaluation of the work derived from current or historical or structural gender discrimination.” Terranova’s appeal was dismissed.

State v. Airline Limited Court of Appeal of New Zealand (2010)

Employment discrimination, Sexual violence and rape

A commercial airline pilot was dismissed after making an unscheduled overnight stop and having sexual relations with a cabin crew member. The pilot appealed to the Employment Court. The Employment Court declined to suppress the pilot’s name from the public record. The court held that the Employment Court was not wrong to find that the public’s right to know outweighed the pilot’s reputational interests, and dismissed the appeal.

Ng Shiu v. Mohammed Naseeb Human Rights Review Tribunal (2004)

Sexual harassment

The plaintiff and the defendant were both taxi drivers. The plaintiff claimed the defendant harassed her with phone calls and unwanted and offensive touching. The court was not satisfied that the events that took place gave rise to any tenable claim of sexual harassment. The court found that for a short period at and about the time that the defendant was making contact with the plaintiff, she did suffer from a level of anxiety while at work, which was sufficient to constitute a ‘detrimental effect’ to her employment under the Human Rights Act.

Angelica Rangi Ngapera v. Gerry Reddick Human Rights Review Tribunal (2004)

Employment discrimination, Sexual harassment

The plaintiff worked at a motel. She alleged that her manager made offensive comments to her and spread rumors about her in the community. The court found that the plaintiff suffered a detriment in the course of her employment under the Human Rights Act.

Case Number E.2006/156, K.2008/125 Constitutional Court of Turkey (2008)

Gender discrimination

The Constitutional Court found that a Labour Law that states that an employer must pay severance to a woman who requests to terminate her employment contract within a year of getting married is constitutional and not discriminatory. Under Article 14.1 of the Turkish Labour Law, an employer must pay severance to a woman who requests to terminate her employment contract within a year of getting married. The Izmir 6th Labour Court found that this provision is discriminatory under the Constitution as it treats male and female workers differently. Using Article 41 and Article 50 of the Turkish Constitution, the Constitutional Court, however, ruled that the law is not discriminatory and does not violate the Constitution. Under Article 41, Turkey has the power to “take necessary measures” to ensure the “peace and welfare” of the family, specifically in regards to the protection of mothers and children. Article 50 allows women, and other protected groups, to enjoy “special working conditions.” The Court found that the goal of the Labour Law to protect both female workers and the family union aligned with these two Articles, and thus was neither discriminatory nor in violation of the Constitution.

Mme Florence B…/IBM, RG 02/00504, Arret n. 635 2003 Cour d’appel de Montpellier (2003)

Employment discrimination, Gender discrimination

Florence B, an employee of SA IBM France, was promoted to the rank of “coefficient 285” in March 1986. She remained in this position for a total of 12 years. Company statistics demonstrated that the average period of employment for male employees of the company in this position was only 4.11 years. Florence B claimed that the company failed to promote her based on grounds of sexual discrimination. IBM France SA was unable to justify Florence B’s lack of career advancement and refused to provide documentation to show that Florence B’s lack of advancement was justified. Florence B was awarded damages of 30,000 euros to compensate her for the lack of career advancement and the court ordered her promotion to “coefficient 114.” The costs of the case were to be determined in accordance with Article 700 of the New Civil Code of Procedure, in favor of the appellant.

Florence B, une employée chez SA IBM France a été promue au rang “coefficient 285” en mars 1986. Elle a resté à ce rang pendant 12 ans. Les statistiques de la compagnie démontrait que les employés mâles restaient à ce rang pour une moyenne de 4.11 ans avant d’être encore promus. Florence B prétendait que la compagnie ne l’a pas promue en conséquence de sexisme. IBM France SA n’a pas pu justifier la manque d’avancement de Florence B et a refuse de fournir des preuves démontrant que cette manqué était justifiée. La cour a ordonné que Florence B reçoit 30,000 euros comme recompension pour la manqué d’avancement. La cour a aussi ordonné qu’elle soit promue au rang “coefficient 114.” Les coûts de litige devaient être determines en accordance avec l’Article 700 de la nouvelle code civile de procedure, en faveur de l’appelant.

Cour de cassation, N. de pourvoi: 02-44904, 2004 Cour de Cassation, chambre sociale (2004)

Gender discrimination

Contract of employment – dismissal – sexist and racist remarks – real and serious cause. Mr. X, employed as a chef by the company “Pavillion Montsouris”, was dismissed by a letter dated 4 June 1999 for gross negligence following several instances of alleged sexist and racist remarks made at the workplace towards several members of staff. The Court of Appeal of Paris dismissed the case, interpreting the comments made by Mr. X as “out of place” and “of bad taste” but not serious enough to warrant his dismissal. The Court of Cassation rejected this decision, reaffirming that Mr. X’s actions were nonetheless very serious and real (although this was not considered to amount to gross negligence, which only applies if there is an intention to harm towards an employer and cannot be applied between co-workers). The court confirmed that the severity of Mr. X’s sexist and racist comments were such that his dismissal was justified. This case marks the courts’ rejection of the trivialization of serious sexist and racist remarks towards female employees at the workplace.

M. X a été démis de son travail suivant plusieurs allegations d’instances de commentaires sexists et racists qu’il a fait dans son milieu de travail envers plusieurs collègues. La cour d’appel de Paris a rejeté l’affaire, trouvant les commentaires simplement hors de propos et de mauvais goût mais pas aussi sérieux pour justifier son démis. Par la suite, la cour de cassation a rejeté cette decision, affirmant que les actions de M. X ont étés très sérieux (mais pas au niveau de negligence grave, ce qui est seulement applicable s’il existe l’intention de faire mal à un employeur, mais pas à un collègue. La cour a confirmé que la sévèrité des commentaires de M. X envers les employés femelles dans le milieu de travail étaient tells que son démis était justifié.

Badih v. Myers California Court of Appeal (1995)

Gender discrimination

In 1987, Fatmeh Badih (“Badih”), a recent immigrant from Sierra Leone, was hired by the medical offices of Dr. Leonard Myers (“Myers”) as a medical assistant. Almost three years later, Badih told Myers she was pregnant. He immediately fired her. According to Badih, when she told Myers the news he replied, “If you told me you were going to get married and have babies, I wouldn’t have hired you in the first place. I need an office girl when I need her, not a person that has responsibilities the way you do now. . . . You’re going to have to go.” Badih filed a compliant against Myers and alleged pregnancy discrimination, among other claims. Myers denied that he fired Badih because she was pregnant. The jury found that Myers had terminated Badih because of her pregnancy, awarded her $20,226 in damages, and granted Badih’s motion for attorney fees. Myers appealed the judgment and attorney fees order. He argued that because he employed less than five people he was not subject to the pregnancy discrimination provisions of California’s Fair Employment and Housing Act (“FEHA”). He also argued that no other constitutional or statutory provisions prohibited pregnancy discrimination. The Court of Appeal affirmed the trial court’s judgment and attorney fees order. It held that pregnancy discrimination in employment was a form of sex discrimination. Because article I, section 8 of the California Constitution prohibits sex discrimination in employment regardless of the employer’s size, those who work for employers not covered by FEHA can maintain pregnancy discrimination claims under the California Constitution.

International Case Law

Arjona Camacho v. Securitas Seguridad España, SA European Court of Justice (2015)

Employment discrimination

Ms. Arjona Camacho was dismissed from her position as a security guard at a juvenile detention center. The Social Court No. 1 of Cordoba in Spain found that her dismissal constituted discrimination on the grounds of sex, and referred to the European Court of Justice the question of whether EU law (specifically Article 18 of Directive 2006/54/EC) requires a national court to grant punitive damages, i.e., damages that go beyond the amount necessary to compensate the actual loss and damage caused by the discriminatory act, even when the concept of punitive damages does not exist within the legal tradition of that national court. The European Court of Justice found that, although punitive damages may be awarded under such circumstances, they are not required under EU law. If the national law does not provide a ground for the award of punitive damages, EU law does not independently provide such a right.

La Sra. Arjona Camacho fue despedida de su puesto como guardia de seguridad en un centro de detención juvenil. El Juzgado de lo Social Nº 1 de Córdoba en España determinó que su despido constituía una discriminación por motivos de sexo y remitió al Tribunal de Justicia de las Comunidades Europeas la cuestión de si la legislación de la UE (específicamente el artículo 18 de la Directiva 2006/54 / CE) exige una tribunal nacional para otorgar daños punitivos, es decir, daños que van más allá del monto necesario para compensar las pérdidas y daños reales causados ​​por el acto discriminatorio, incluso cuando el concepto de daños punitivos no existe dentro de la tradición legal de ese tribunal nacional. El Tribunal de Justicia de las Comunidades Europeas determinó que, aunque en tales circunstancias se pueden otorgar daños punitivos, no están obligados por la legislación de la UE. Si la legislación nacional no proporciona un motivo para la concesión de daños punitivos, la legislación de la UE no puede proporcionar dicho derecho de forma independiente.