Women and Justice: Keywords

Legislation

Act on Securing, Etc., of Equal Opportunity between Men and Women in Employment (Act No. 113 of 1972) (2017)

Gender discrimination, Sexual harassment

The Act on Securing, Etc. of Equal Opportunity and Treatment between Men and Women in Employment (‘the Act’) aims to promote equal opportunities and treatment of men and women in the workplace. The Act falls under Article 1 of the Constitution’s mandate for the government to ensure equality under law and promote measures to ensure the health of working women during pregnancy and after childbirth.  Japan enacted the Act in 1985 upon the United Nation’s ratification of Convention on the Elimination of all forms of Discrimination against Women.  The Act prohibits employment discrimination based on sex at each stage of recruitment, assignment, and promotion. It also prohibits discriminatory treatment based on marriage status, pregnancy and childbirth.  In addition, an Amendment to the Act in 2017 obligates employers to take steps to prevent harassment based on a protected status.  To ensure its effectiveness, the Act requires that employer violations of the statute be publicly announced, and a fine imposed on employers who violate the reporting obligation.  



Domestic Case Law

Schiavo v. Marina Dist. Development Co., LLC Superior Court of New Jersey Appellate Division (2015)

Employment discrimination, Gender discrimination, Sexual harassment

Twenty-one former employees of the defendant’s hotel and casino alleged sexual discrimination, gender stereotyping, and disparate treatment and impact as a result of their employer’s standards for appearance. The casino instituted a standard weight applicable to men and women (which was 7% above a base rate adjusted for gender). The women’s job was to bring drinks to casino patrons, and to do so wearing a revealing costume. The plaintiffs reported incidents of sexual harassment by casino patrons to their employers, who did not address the incidents. The lower court granted summary judgment to the casino on the complaints of facial discrimination citing the statute of limitations. However, the appellate court determined that the summary judgment was in error, as it did not take into consideration that the plaintiffs’ claim that the employer ignored sexual harassment by casino patrons, creating a hostile work environment was a continuing violation. Because one of the alleged acts occurred within the two years prior to filing the case, the case is thus not time-barred.



2012 (Ju) No. 2231 Supreme Court of Japan (2014)

Gender discrimination

The plaintiff was a physiotherapist in a managerial position at her employer. She requested and was granted maternity leave but was not allowed to return to her position at the end of the maternity leave. She filed a lawsuit against her employer, asserting that there was a violation of the Equal Employment Opportunity Law. The Supreme Court found in favor of the plaintiff because the Equal Employment Opportunity Law forbids disadvantaging employees based on the employee’s pregnancy, childbirth, request for maternity leave, or request for transfer to lighter work.



2001 (Ju) No. 1066 Supreme Court of Japan (2003)

Employment discrimination

The plaintiff exercised her right under Japanese law to reduce her working hours to spend time taking care of her child. The internal policy of her employer stated that employees who did not attend work for 90% or more of work days are ineligible for a bonus. The plaintiff’s employer counted the plaintiff’s shortened working days as absences and refused to pay her a bonus. The plaintiff sued her company for a bonus. The Supreme Court determined that the employer’s internal policy violated public policy and the employer should have counted actual working hours when calculating attendance rate.



Hayward v. Cammell Laird Shipbuilders Ltd [1988] A.C. 894 17 House of Lords (1988)

Gender discrimination

The applicant, a woman, was employed at a shipyard canteen as a cook and was classified as unskilled for the purposes of pay. She claimed that she was doing work of equal value to male comparators who were shipyard workers paid at the higher rate for skilled tradesmen in the yard. The industrial tribunal, at a further hearing, rejected the applicant's contention that, in considering whether her contract of employment should be modified, it was sufficient to compare her basic pay and overtime rates with that of the male comparators and held that without a comparison of all terms and conditions of employment she was not entitled to a declaration that she should receive a higher rate of pay. The Employment Appeal Tribunal dismissed the applicant's appeal and, on her appeal, the Court of Appeal upheld that decision. The Court of Appeal dismissed the applicant's appeal. When deciding whether a woman’s contract is equal to a man’s it is sufficient for certain terms to be less advantageous for the woman for the contract to be unfair. It is not necessary for the overall woman’s contract to be less advantageous than the overall man’s contract.



HelHo 2009:10 Court of Appeal of Helsinki (2009)

Employment discrimination, Gender discrimination

The issue here was whether a representative of an employer can be guilty of work discrimination, as set forth in Section 3 of Chapter 47 of the Finnish Criminal Code (39/1889, as amended) (the “Criminal Code”), by temporarily laying off an employee on the employee’s return from family leaves, and whether a justifiable cause for such discrimination existed in the case. In the case, B, who had been working at a company since 1998, had been on a two-year maternity leave between 2004 and 2006 and on a subsequent nursing leave after the maternity leave ended. During these family leaves, the company had, initially temporarily and subsequently on a permanent basis, employed C to carry out tasks that B had been responsible for before the family leaves. Upon her return to work in early 2007, B was temporarily laid off by A, the CEO of the company. A claimed that the work that C had been tasked with doing had changed while B was on the family leaves and that B could therefore not return to her old position. A further stated that the company was not able to offer B another position due to the company’s financial difficulties, and more specifically, that the company was not able to simultaneously employ both B and C. According to the Criminal Code, an employer, or a representative of the employer, that during employment without an important and justifiable reason puts an employee in an inferior position because of the employee’s gender, is guilty of criminal work discrimination. The Court of Appeal held that B had under the Finnish Employment Act (55/2011, as amended) the right to return to her old position after her family leaves ended or, if this was not possible, be offered other work in accordance with her employment contract. The Court further held, in accordance with A’s own statement, that the company could have trained B for the new type of work within only a brief period of time and, therefore, that laying off B and continuing to employ B’s substitute C (that had been made a permanent employee just before B’s return) was based on B’s gender and her family leaves. Due to these reasons, and despite the company’s financial difficulties, the Court held that there was no justifiable reason for the discrimination and, therefore, found A guilty of criminal employment discrimination. A was sentenced to pay 30 days-fine and damages to B of 1,200 Euros.



Sentencia núm. 7262/2008 High Court of Cataluña, Labour Chamber (2008)

Employment discrimination, Gender-based violence in general

Mrs. Yolanda was dismissed from her job post when she was in a situation of temporary incapacity as a consequence of an anxiety disorder due to physical abuse carried out by her husband. The company alleges that during the period of temporary incapacity due to anxiety disorder, Mrs. Yolanda carried out a normal life. This situation may be a cause of dismissal for normal workers, but not when the worker is a victim of gender abuse. Mrs. Yolanda was in a situation of temporary incapacity determined by the Spanish health services. The High Court of Catalonia decided that as Mrs. Yolanda was in a situation of temporary incapacity determined by the health services due to gender based violence she had to be readmitted in her job.

 

La Sra. Yolanda fue despedida de su puesto de trabajo cuando se encontraba en una situación de incapacidad temporal como consecuencia de un trastorno de ansiedad debido a los abusos físicos cometidos por su esposo. La compañía alega que durante el período de incapacidad temporal debido a un trastorno de ansiedad, la Sra. Yolanda llevó a cabo una vida normal. Esta situación puede ser causa de despido para los trabajadores normales, pero no cuando el trabajador es víctima de abuso de género. La señora Yolanda se encontraba en una situación de incapacidad temporal determinada por los servicios de salud españoles. El Tribunal Superior de Cataluña decidió que, dado que la Sra. Yolanda se encontraba en una situación de incapacidad temporal determinada por los servicios de salud debido a la violencia de género, tuvo que ser readmitida en su trabajo.



Bebb v. Law Society Court of Appeals of the United Kingdom and Northern Ireland (1914)

Employment discrimination, Gender discrimination

Gwyneth Bebb, upon being denied admission to the Law Society to take the preliminary examination to become a solicitor, took the matter to court. In Bebb v. Law Society, the Court of Appeal stated that the question of whether the gender-neutral language of the statutes meant that women could gain admission to the bar was settled through “long usage” in the common law and found that women were not included under “persons” in the Solicitor’s Act of 1843. Additionally, women were considered to have an additional disability at common law, namely that after marriage they are not able to enter into contracts with third parties. As every woman held the potential of being married, this disability was also applied to unmarried women.



Allegheny County v. Wilcox Pennsylvania Commonwealth Court (1983)

Gender discrimination

The defendant-appellant, the Court of Common Pleas, appealed a ruling by the Pennsylvania Human Relations Commission (“PHRC”).  The PHRC had ruled that the defendant discriminated against female secretaries with respect to compensation and directed them to upgrade the secretaries’ wages and to pay them back pay.  The defendant argued that the PHRC could not require it to increase the wages and also that it was not considered an “employer” under 43 P.S. § 954(b).  The defendant argued that the definition of employers does not include a reference to courts and that any application of the Pennsylvania Human Relations Act violates the doctrine of separation of powers by allowing the executive and legislative branches to interfere upon the judicial branch. The court found that the defendant failed to show how its authority was encumbered by the Human Relations Act.  The court also found that compelling the upgrade or equalization of pay was proper where, inversely, a court could compel a legislative body to spend money that is reasonably necessary for the body’s proper operation and administration.  Thus, the court affirmed the PHRC’s finding and ruled that the PHRC could require the defendant to increase the female secretaries’ wages and order back pay.



Motsinger v. Lithia Rose-Ft, Inc. Oregon Court of Appeals (2007)

Employment discrimination, Gender discrimination, Sexual harassment

Plaintiff, who was employed for fourteen months by defendant as a part-time receptionist, alleged that she was subjected to repeated acts of sexual harassment by several male employees. Plaintiff also alleged that her employment was terminated in part as retaliation for reporting this sexual harassment to management. Plaintiff brought a wrongful termination action against the employer, alleging claims of sexual harassment under Or. Rev. Stat. § 659A.030(1)(a), retaliation under Or. Rev. Stat. § 659A.030(1)(f), wrongful discharge, battery, and intentional infliction of emotional distress. The trial court denied defendant's petition to abate the proceeding pending arbitration, ruling that the arbitration clause contained in plaintiff's employment contract with defendant was unenforceable because it constituted an unconscionable contract of adhesion. The appellate court found that the employee did not show that the contract formation carried indicia of procedural and substantive unconscionability other than an unequal bargaining power. Consequently, the Court of Appeals of Oregon reversed and remanded the case.



Mackay v. Acorn Custom Cabinetry Washington Supreme Court (1995)

Employment discrimination, Gender discrimination

Plaintiff-ex-employee challenged the jury instruction given by the Superior Court, which directed the jury to find in plaintiff’s favor in a discrimination case brought pursuant to Wash. Rev. Code § 49.60.180(2), only if it concluded, inter alia, that gender was the determining factor in the decision by defendant ex-employer to discharge plaintiff. RCW 49.60.180(2) provides that “[i]t is an unfair practice for any employer . . . (2) [t]o discharge or bar any person from employment because of age, sex, marital status, race, creed, color, national origin, or the presence of any sensory, mental, or physical disability or the use of a trained guide dog or service dog by a disabled person.” The Supreme Court of Washington declined to read the “because of” language of the statute, as requiring proof that one of the attributes enumerated in RCW 49.60.180(2) was a “determining factor” in the employer’s adverse employment decision. Rather, the Supreme Court reversed the lower court’s decision, holding that in order to prevail on a discrimination claim brought pursuant to RCW 49.60.180(2), plaintiff only needed to prove that her gender was a “substantial factor” in defendant’s decision to terminate her employment.



Danny v. Laidlaw Transit Servs., Inc. Washington Supreme Court (2008)

Domestic and intimate partner violence, Employment discrimination

While she was working at Laidlaw, plaintiff and her five children experienced ongoing domestic violence at the hands of her husband. Plaintiff requested time off to remove herself and her children from the abusive situation, was refused, and was subsequently given paid time off for 15 days, in which she availed of police, legal, and advocacy assistance. Shortly after returning to work, defendant first demoted plaintiff and subsequently terminated plaintiff’s employment stating as a reason falsification of payroll records. Plaintiff filed her complaint against defendant, alleging that Laidlaw terminated her employment in violation of public policy and Washington's Law Against Discrimination, RCW 49.60. Absent a contract to the contrary, Washington employees are generally terminable “at will,” with a narrow exception for the common law tort of wrongful discharge, which applies when an employer terminates an employee for reasons that contravene a clearly mandated public policy. As one element of this tort, the plaintiff needed to establish “the existence of a clear public policy (the clarity element).” The Supreme Court of Washington reformulated the certified question from the District Court as follows: Has Washington established a clear mandate of public policy of protecting domestic violence survivors and their families and holding their abusers accountable? The Supreme Court of Washington answered the question in the affirmative, holding that plaintiff had satisfied the “clarity” element of wrongful discharge in violation of public policy, because Washington unequivocally established, through legislative, judicial, constitutional, and executive expressions, a clear mandate of public policy of protecting domestic violence survivor and their families and holding abusers accountable. On remand, the Supreme Court of Washington instructed the District Court to determine whether employee satisfied the jeopardy element of the tort by showing that the time she took off from work was the only available adequate means to prevent domestic violence against herself or her children by evaluating the nature of the danger, the particular actions she undertook, and the details of her work schedule.



Cuddyer v. Stop & Shop Supermarket Co. Supreme Judicial Court of Massachusetts (2001)

Employment discrimination, Sexual harassment

Here, the plaintiff worked for the defendant as a worker on production lines.  Since the first day she was sexually harassed by her supervisor and two foremen, as were other women workers. Although plaintiff reported some of the incidents, she did not report all because she was afraid the supervisor would make her work harder if she complained. Complaints to management were followed by periods of relief, but the sexual harassment would restart or would turn into a hostile work environment. Similar occurrences continued and the plaintiff filed the suit against the defendant for a hostile work environment. Gen. Law. C. 151B, § 5 requires a plaintiff to file a complaint with the Massachusetts Commission against Discrimination (“MCAD”) within six months of the occurrence of the discrimination to allow the MCAD an opportunity to investigate the claim and to provide the defendant with notice of potential liability. However, this requirement does not exist where the discrimination is of a continuing nature and where there is a discrete violation within the six-month period to anchor the earlier claims. Here, the plaintiff did not file a complaint with the MCAD within six months of the first occurrence. The defendant argued that the continuing violation doctrine does not apply here because the plaintiff admitted in her deposition that she considered the discrimination by other employees at the time the acts occurred. A continuing violation claim will fail if the plaintiff should have been aware that she was being discriminated against while the earlier acts which are now untimely, were taking place. Id. at 534-35. The court found though that a plaintiff may not be able to appreciate the true character of the discriminatory environment until after it has continued for some time. Further, a hostile work environment constitutes a pattern of sexual harassment, which by definition, has to take place over time. The court found the plaintiff’s claims were thus timely and not barred by the six-month requirement.



College-Town, Div. of Interco, Inc. v. Mass. Comm’n Against Discrimination Supreme Judicial Court of Massachusetts (1987)

Employment discrimination, Gender discrimination, Sexual harassment

Here, an employer appealed the superior court’s decision that it discriminated against an employee on the basis of sex.  A few weeks after College-Town hired the employee, Rizzi, Rizzi’s supervisor began making sexually suggestive comments to her.  Once he touched her back, and another time he put his hand over a slit in her dress and told her to fix her skirt.  On one occasion, Rizzi asked her supervisor to review her performance in a meeting and he told her that she handled it well and that he “liked the way [her] tits stood out in the red shirt.”  Once, he asked her if she was a good f----.  Rizzi then spoke to the director of manufacturing, who told her he was “not qualified to go into these things,” and refused to talk to her.  Rizzi had to wait several days before she could tell someone else at work.  A College-Town executive finally spoke with the supervisor about the allegations, which were denied.  A meeting was held to determine the truth of the allegations, which the supervisor and all other women in the department attended except for Rizzi.  She was not asked to the meeting or notified of its occurrence.  At the meeting, the supervisor explained the allegations and Rizzi’s co-workers were generally supportive of the supervisor.  College-Town made no further investigation.  Prior to that meeting, Rizzi sought a promotion to a position in another department.  After the meeting was held, Rizzi was informed she was not qualified for the promotion and College-Town hired someone with more knowledge and experience.  Soon thereafter, College-Town attempted to transfer Rizzi as tension in the office was affecting productivity and she declined.  Rizzi was never told the transfer was mandatory, and within weeks of her denial, she was discharged. The trial court found that College-Town’s supervisor created a sexually harassing work environment, it failed to remedy the situation, and it retaliated against the employee in its attempt to transfer her and discharge her once she declined the transfer.  Id. at 158.  The Massachusetts Supreme Court affirmed the decision and found that sexual harassment may constitute discrimination under Gen. L. C. 151B, §4(1), which prohibits employment discrimination on the basis of gender.



AD 1996 nr 79 Supreme Court of Sweden (1996)

Gender discrimination

"An employer may not discriminate against a person who, with respect to the employer,1. is an employee; 2. is enquiring about or applying for work; 3. is applying for or carrying out a traineeship; 4. is available to perform work or is performing work as temporary or borrowed labour. (…)"].  In AD 1996 nr 79 the Swedish Labour Court (Sw: Arbetsdomstolen) ruled that a municipality was applying a salary development system that constituted gender-based discrimination.  A female head of department had received, for four time periods, a lower wage than a male head of department who was employed by the same municipality. The municipality argued that the differences in salary were justified by differences in the two jobs.  However, the court rejected this claim, finding that during the last two time periods, the employees' jobs had in effect been equivalent.



Menefee v. McCaw Court of Appeals of Texas – Dallas Division (2003)

Gender discrimination

Sherri Menefee filed an employment sex discrimination and retaliation case against her employer, McCaw Cellular.  Sherri was hired as the manager of the IT department for the company’s southwestern region.  She alleged that her boss discriminated against her and that she was subjected to a less favorable environment based on her sex and was terminated shortly after complaining about the discrimination.  Under the Texas Commission on Human Rights Act (Texas Labor Code § 21.051(1)), an employer commits an unlawful employment practice if, because of sex, the employer discriminates in any manner against an individual in connection with compensation or the terms, conditions, or privileges of employment.  The Act is modeled after the federal Title VII and therefore Texas courts may look not only to cases involving the state statute but also to cases interpreting the analogous federal provisions.  In discrimination cases based upon circumstantial evidence, the plaintiff must first establish a prima facie case by showing: (1) she was a member of the protected class, (2) she was qualified for the position she held, (3) she was discharged or suffered an adverse employment action, and (4) she was replaced with a person who is not a member of the protected class or she was otherwise treated differently from persons outside the protected class.  Once the plaintiff makes this “minimal” showing, the burden of production shifts to the employer to produce evidence that the plaintiff was terminated for a legitimate, nondiscriminatory reason.  Then the plaintiff must establish that the legitimate reason was a “pretext” by showing that a discriminatory motive move likely motivated the employer’s decision, such as through evidence of disparate treatment or that the employer’s explanation is unworthy of credence.  In this case, Sherri established a prima facie case, and McCaw met its burden by producing evidence that Sherri was fired because she was not a “good fit” for her team.  Sherri sufficiently evidenced that this reason for her termination was a pretext because the reason she could not create a cohesive team was due to the discriminatory conduct and disruptive behavior of her boss and the failure of her supervisors to take action when she complained; moreover, she presented evidence that she had been told she was doing a good job.  Thus, Sherri sufficiently raised a factual issue to survive summary judgment.



KKO 2010:1 Supreme Court of Finland (2010)

Gender discrimination, Sexual harassment, Sexual violence and rape

The issue here was whether A, the CEO of a company for which the victims worked, was guilty of sexual abuse, of a work safety offense, and of employment discrimination. A had performed sexual acts on his subordinates while they were resting in the break room. These acts included touching intimate parts such as breasts and bottom. The District Court and the Court of Appeal held A guilty of these charges, and A appealed to the Supreme Court.  The Supreme Court considered whether the public prosecutor had a cause of action given that the injured party had not reported the offense within the statute of limitations period.  According to Chapter 20 Section 11 of the Finnish Criminal Code (39/1889, as amended) (the "Criminal Code"), the public prosecutor may not bring charges for the offenses referred to in Sections 3 or 4 or Section 5(1)(2) or 5(1)(4), unless the injured party reports the offense for the bringing of charges or unless a very important public interest requires that charges be brought.The Court held that since A was the victim's supervisor, important public interest required the case to be brought to court by the prosecutor. Turning to the merits of the case, the Court found that A had abused his position in violation of Chapter 20 Section 5(1) of the Criminal Code.  It therefore held A guilty of sexual abuse towards B, C, D and E.  In addition, the Court upheld A's convictions for a work safety offense under Chapter 47 Section 1(1) of the Criminal Code and Section 27 of the Finnish Occupational Safety and Health Act (738/2002, as amended).  Finally, the Court upheld A's conviction for employment discrimination in violation of Section 8(2)(4) of the  Finnish Equality Act (609/1986, as amended), in accordance with Chapter 47 Section 3(1) of the Criminal Code.



KKO 1995:152 Supreme Court of Finland (1995)

Gender discrimination

The issue here was whether the employer was allowed to lay off an employee returning from maternity leave due to a change of duties. During Ms. Mari Karjanoja's maternity and parental leave, her duties as a product manager had changed as a result of the company restructuring, and the employment relationship of her substitute, Ms. Tuulia Pärkö, had been made permanent. When Ms. Karjanoja returned from maternity leave, she was not offered back her duties as a product manager as the employer regarded Ms. Pärkö to be better qualified to take care of such duties in the changed situation. Later, for financial and production related grounds, the employer laid off Ms. Karjanoja.  Section 34 h of the Old Finnish Employment Contracts Act (320/1970, as amended) (the "Old Employment Contracts Act") prevented the displacement of an employee returning from maternity and parental leave on the basis that a substitute to the employee would be able to carry out the work duties better than the employee. Therefore, the Supreme Court considered that the employer should have offered Ms. Karjanoja the changed work duties of the product manager which were comparable to her previous duties. Since the ground of Ms. Karjanoja's termination was the employer acting against Section 34 h of the above-mentioned Old Employment Contracts Act, the employer did not have sufficient grounds for the termination. On these grounds, the Supreme Court, upholding the decisions of the District Court and the Court of Appeal, ordered the employer to pay damages to Ms. Karjanoja.



KKO 1992:7 Supreme Court of Finland (1992)

Gender discrimination

The issue here was whether the employer company was guilty of discrimination in working life. Marja-Liisa Laukkanen had been working at Oy Kolmeks Ab. During her four months trial period, she got pregnant on which she informed her employer. Soon after that, she was dismissed on the grounds that she was on her trial period. Ms. Laukkanen claimed that her pregnancy was the ground for the dismissal which was against Section 8 of the Finnish Equality Act (609/1986, as amended) (the "Equality Act") on the basis of discrimination in work life.  In addition, Ms. Laukkanen claimed that the dismissal was against Section 3 of the Old Finnish Employment Contracts Act (320/1970, as amended) (the "Old Employment Contracts Act"), which states that employment cannot be revoked on inappropriate grounds. The District Court ruled against Ms. Laaukkanen but the Court of Appeals reversed.  It held that the dismissal of Marja-Liisa Laukkanen was against both the Old Employment Contracts Act and the Equality Act and ordered the company to pay damages. The grounds for the Court of Appeals' decision were that, when the employer and Ms. Laukkanen had negotiated on the employment, the employer had had significant interest on the fact if Laukkanen was planning to get pregnant. Further, the company had not been able to prove that Ms. Laukkanen had started neglecting her work duties as soon as she had found out about her pregnancy. The Supreme Court agreed with the opinion of the Court of Appeals and held that the dismissal violated Section 3 of the Old Employment Contracts Act. However, it did not consider the dismissal to be against the Equality Act because, according to the government proposal (57/1985) for the Equality Act, discrimination in working life only means discrimination based on the gender and, therefore, gender has to be the immediate reason behind the dismissal.



KKO 1991:14 Supreme Court of Finland (1991)

Gender discrimination

The issue here was whether the Finnish State was guilty of 4 in selecting an applicant for a job. Ms. Risse Serén claimed that she was more qualified for the position of the head of the office at the Ministry of Agriculture and Forestry than Mr. Paavo Mäkinen, who had been selected for the position. She claimed that she had been discriminated during the application process because of her gender. According to Section 8 of the Finnish Equality Act (609/1986, as amended) (the "Equality Act"), an action of an employer is deemed to constitute discrimination if, inter alia, the employer selects a less qualified person of the opposite sex for the position unless there is a justifiable reason for such selection other than the applicant's gender or the selection was based on weighty and acceptable ground related to the job or the task. The District Court evaluated the assessment of education, work experience, and other qualifications of the both applicants prepared by the Ombudsman for Equality and concluded that Ms. Serén was more qualified for the position. Since the state of Finland did not show that there were any acceptable reasons described in the Equality Act, the District Court ordered the state pay damages to Ms. Serén for the discrimination. The Court of Appeals and the Supreme Court upheld the decision of the District Court.



S.A. v. I.G.R Bucharest Court of Appeal (2010)

Gender discrimination

Ms. S.A. was dismissed by I.G.R. based on the fact that she was reaching the standard age for retiring although she chose to continue working. The court of first impression held that the decision of the employer was illegal due to 4 given that it has decided to terminate the employment contract of the claimant solely due to the fact that she had exceeded the standard age for retiring in case of women (58 years) while a man born on the same year could work until the age of 64. The first court held that the national law may establish different ages for state pensions for women and for men, as a social protection measure, but women only have the right and not the obligation to retire at the respective age. Romanian Law No. 202/2002 regarding the equal treatment between women and men prohibits 4 by an employer. On appeal, the Appeal Court maintained the decision of the first court, considering that dismissal solely based on reaching the qualifying age for a state pension, for which the age is different under national legislation for men and for women, constitutes discrimination on grounds of sex. A general dismissal policy of an employer implying the dismissal of a woman having as sole reason the standard retiring age, which is different for women and men, is 4 prohibited by the national and European legislation. Given the priority of European legislation over the national legislation, the court cited in its reasoning the case, Marschall v. Southampton and South – West Hampshire Area Health Authority of the Court of Justice of the European Union dated 26 February 1986.



AD 2011 nr 2 Supreme Court of Sweden (2011)

Gender discrimination

"An employer may not discriminate against a person who, with respect to the employer, 1. is an employee, 2. is enquiring about or applying for work, 3. is applying for or carrying out a traineeship, or 4. is available to perform work or is performing work as temporary or borrowed labour. (…)" Chapter 2 Section 1 of the Swedish Discrimination Act.]  A woman had applied for employment at the farm where she was doing an internship. During the internship the woman had had a miscarriage, which she told the farmer about. She was later denied employment. The farmer claimed that he denied her employment due to her insufficient capacity for work. However, the Swedish Labour Court (Sw: Arbetsdomstolen) found that the decision to deny the woman employment did not completely lack connection with a possible future pregnancy. Hence, Swedish Labour Court ruled that the denied employment constituted a violation of the Discrimination Act and granted the woman compensation for the damage suffered from the discrimination.



Raya & Haig Hair Salon v. Pennsylvania Human Relations Commission Commonwealth Court of Pennsylvania (2007)

Sexual harassment

Aida Armani worked as a hairstylist at Raya and Haig Hair Salon.  One of her customers, Kadyshes, began verbally and physically sexually harassing Aida by telling sexual jokes, commenting on her breasts, telling her she would be good in bed, and touching her rear and shoulders.  The Salon eventually hired Kadyshes as a business manager, and he became Aida’s direct supervisor.  Aida complained on at least six occasions but no action was taken to stop Kadyshes’s conduct.  Eventually Aida decided to open her own salon but before she could resign the Hair Salon learned of her plans and fired her.  The Commission found that the Salon unlawfully discriminated against her by subjecting her to a hostile work environment and constructively discharging her because of her sex.  The Salon challenged the decision on multiple grounds.  First, it argued that Aida was not discharged because of her sex but because she opened her own salon.  The court found that Aida established a prima facie claim for hostile work environment and that the evidence supported the conclusion that the Hair Salon violated the Pennsylvania Human Relations Act by allowing the existence of a hostile work environment.  In order to establish a prima facie claim for hostile work environment, a complainant must prove that she (1) suffered intentional discrimination because of her race or gender; (2) the harassment was severe or persuasive and regular; (3) the harassment detrimentally affected the complainant; (4) the harassment would detrimentally affect a reasonable person of the same protected class; and (5) the harasser was a supervisory employee or agent.  Constructive discharge occurs when an employer knowingly permits conditions of discrimination in employment so intolerable that a reasonable person subject to them would resign.  The fact that Aida stayed at her job did not preclude a finding of constructive discharge—she was the sole source of income for her family and she endured the treatment as long as she could take it.  Second, the Salon argued that it was improper to admit testimony about Aida’s work conditions that predated the time frame for which she alleged discrimination.  But the entire scope of a hostile work environment claim is permissible for assessing liability, including behavior alleged outside the statutory time period.  Third, the Salon challenged the determination that Aida attempted to mitigate her damages.  While a plaintiff has a duty to mitigate her damages, the burden of showing that she did not exercise reasonable diligence in seeking comparable employment lies with the employer.  Aida’s self-employment constituted mitigation because she took immediate steps to open her salon after she was fired.



Roberson v. University of Tennessee Tennessee Supreme Court (1992)

Gender discrimination

Employee filed suit against her employer, the University of Tennessee, alleging sex discrimination under the Equal Pay Act and the Tennessee Human Rights Act (“THRA”).  She also alleged that her employer retaliated against her for filing an EEOC charge.  The Court of Appeals held that there was sufficient evidence to support the verdict that she had suffered discrimination and that her employer retaliated against her.  Plaintiff was an employee of the University’s Agricultural Extension Service since 1980.  She was eligible for a promotion in 1986, but was not promoted.  Her co-worker, however, who started in 1979, was promoted.  Plaintiff filed an EEOC charge.  She then brought an action for sex discrimination under the Equal Pay Act and THRA and alleged that defendant retaliated against her for filing the EEOC charge.  The Court found sufficient evidence to uphold the jury verdict granting plaintiff $13,600 on her discrimination claim, $50,000 on her retaliation claim, and $26,000 in attorney’s fees.  The Court noted evidence that plaintiff’s evaluation scores were adjusted downward after she signed off on them and before they were given to the Dean who made decisions regarding pay and promotion.  There was also evidence that complaints against her were taken more seriously than complaints against her peers.  One of her supervisors admitted that he stopped recommending her for promotions after she filed the EEOC charge, and that management took much more time and effort over small matters that related to the plaintiff.



O’Loughlin v Pinchback Florida 1st District Court of Appeal (1991)

Gender discrimination

After disclosing her pregnancy to her employers, Pinchback, a correctional officer at a county jail, was terminated. As a reason for the termination, Sheriff O’Loughlin explained that while pregnant, Pinchback could not perform the duties of a correctional officer and was placing her baby’s health in danger. Pinchback petitioned Florida’s Human Rights Commission for relief, resulting in a finding that O’Loughlin had wrongfully terminated Pinchback in violation of Florida’s Human Rights Act. The Court upheld the determination, explaining that O’Loughlin’s actions were indefensible as there was no evidence that Pinchback (or any pregnant employee) could not perform her work as before. As a result, the Court found Pinchback entitled to back pay.



Ruffin Hotel Corp. v. Gasper Maryland Supreme Court (2011)

Sexual harassment

Respondent sought damages from petitioner and Irman Ahmed, who terminated Respondent’s employment.  Respondent brought, inter alia, claims of negligent hiring and retention against Ruffin Corp. and intentional infliction of emotional distress by Ahmed; employment discrimination and 13 by Ruffin and retaliation by Ruffin.  Gasper alleged that Ruffin hotel hired Ahmed, despite its knowledge that a number of employees had complained of his abusive behavior, behavior that included 13.  She also alleged that Ahmed refused to intervene when she was harassed by another employee and that he fired her after she complained of the harassment.  The court held that petitioner’s claim for negligent hiring and retention, due to her allegation that Ruffin hired an individual against whom allegations of 13 had been made, was not preempted by Title VII, the Maryland Human Relations Act, a county code provision prohibiting retaliation for complaining of 13 or the Maryland Workers’ Compensation Act.  It also found that the rule prohibiting introduction of evidence of other crimes was only applicable in criminal, not civil cases; however, Gasper could not introduce evidence of harassment by Ahmed occurring prior to Ahmed’s rehire because her current allegation was against another employee.



Melani v. Bd. of Higher Educ., United States United States District Court for the Southern District of New York (1983)

Gender discrimination

Plaintiffs sued the board of trustees of the City University of New York (“CUNY”), alleging that CUNY discriminated against its female professors because it paid them less than its male professors, pursuant to Title VII of the Civil Rights Act of 1964 and 42 U.S.C. section 2000e (“Title VII”). As evidence, Plaintiffs provided statistics about the faculty’s pay that demonstrated that the female professors were paid less. Defendant argued in response that the female staff were paid less based on merit, specifically because women devoted more time to child-rearing, had fewer publications, and worked in academic fields for which the market demand was less. The court found that Defendant failed to successfully counter Plaintiffs’ claim because its testimony was little more than generalizations: its evidence did not relate to the CUNY female faculty and did not explain the salary disparity between the male and female faculty. Thus, the court found that Defendant violated Title VII by paying Plaintiffs a lower salary because of their sex.



Gregory v. Daly United States Court of Appeals for the Second Circuit (2001)

Gender discrimination

Plaintiff alleged that she was subjected to a hostile work environment and that when she complained, her employer fired her in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”). Plaintiff argued that her executive director subjected her to sexual ridicule, advances, and intimidation. He also intensified his harassment in response to her complaints, deprived her of work responsibilities, undermined her ability to do her job, and ultimately fired her. The lower court dismissed her case. On appeal, however, the Second Circuit Court of Appeal reversed that decision. It found that Plaintiff could reasonably have found her workplace to be both physically and sexually threatening, based on her allegations about the executive director. It reasoned that the alleged environment could have hurt Plaintiff’s job performance, discouraged her from remaining on the job, or kept her from advancing in her career. Thus, the court concluded, the conduct alleged was contrary to Title VII’s objective of promoting workplace equality. The appeals court also found that Plaintiff could proceed with her case against her employer for retaliation because he fired her after she complained about his behavior.



International Case Law

Case 171/88, Rinner-Kühn [1989] ECR 2743 European Court of Justice (1989)

Employment discrimination

At issue was a challenge to a German statute requiring employers to pay up to six weeks of annual sick leave for employees who worked more than ten hours per week, or more than forty-five hours per month. R-K sued her employer, an office cleaning company for whom she worked ten hours per week, after her request for eight hours of sick pay had been refused. Her claim was that, if Article 141 covered statutory-mandate sick pay provisions, the German legislation discriminated indirectly against women. The ECJ held that Article 141 covered sick pay, and that consequently the statute “must, in principle, be regarded as contrary to the aims of Art.[141]”, unless the German government could muster an argument to the contrary. The Court rejected the government’s submission that compared to full-time workers, part-timers “were not as integrated in, or as dependent on, the undertaking employing them”, declaring that “these considerations, in so far as they are only generalizations about certain categories of workers, do not enable criteria which are both objective and unrelated to any discrimination on grounds of sex to be identified.” It then announced a variation of the least-means proportionality test developed in Bilka. To mount a successful defense, Member States must convince a judge that the legislative “means chosen meet a necessary aim of its social policy,” and that these means “are suitable and requisite for attaining that aim.” The national judge has a duty to apply this test. The Court thus extended the Bilka framework to the judicial review of statutory-mandate social policy.



Carole Louise Webb v. EMO Air Cargo (UK) Ltd., United Kingdom European Court of Justice (1994)

Gender discrimination

Carole Louise Webb v. EMO Air Cargo (UK) Ltd., United Kingdom, European Court of Justice, 1994. Gender discrimination, employment discrimination. Mrs. Webb learned that she was pregnant two weeks after starting with EMO Air Cargo, where she was hired to cover for another employee, Mrs. Stewart, during her maternity leave. Mrs. Webb expected to stay with EMO Air Cargo after covering for Mrs. Stewart, but was dismissed from the company after notifying EMO of her pregnancy. A letter from EMO clearly stated pregnancy as the reason for her dismissal. An industrial tribunal and the Court of Appeal dismissed Mrs. Webb’s claims of direct and indirect discrimination on the grounds of sex. An appeal to the House of Lords was referred to the European Court of Justice, and the European Court of Justice determined that Mrs. Webb’s dismissal was contrary to Article 2(1) and Article 5(1) of the Equal Treatment Directive. The ECJ also noted that Article 2(3) of the Equal Treatment Directive recognizes the importance of protecting women during pregnancy and after the birth of children, by allowing individual Member States to introduce protective legal provisions. Lastly, the ECJ acknowledged that the dismissal of pregnant women during pregnancy and maternity leave is prohibited, noting that exceptions to this prohibition are available only in exceptional cases in which the dismissal is unrelated to the pregnancy.



Bullock v. Department of Corrections Human Rights Review Tribunal (2008)

Employment discrimination, Gender discrimination, Harmful traditional practices

Ms. Bullock, the plantiff, was made to sit in a row behind the male employees and was not given a speaking role in a company event. The plantiff believed the her employer was participating in gender discrimination and attempting to justify this as a company policy that followed traditional Mauri customs. The tribunal ruled that Ms. Bullock's employer was in fact practicing gender discrimination according to the Human Rights Act of 1993.



Slovak Republic, Supreme Court, Decision No. 36/2005, File No. 2 Cdo 67/03 Supreme Court of the Slovak Republic (2005)

Gender discrimination

Ms X.Y. (the claimant) had worked as a nurse in the Hospital in the city of Velký Krtíš (the employer) since November 30, 1998.  On April 11, 2002, the claimant received a notice of the termination of her employment due to her failure to take an oath in accordance with new legislation.  The new legislation came into force on April 1, 2002, when the claimant was on maternity leave.  The notification of the new legal prerequisite was posted in the halls of the hospital making it almost impossible for workers on maternity leave to be informed.  The claimant sued the employer for unlawful termination of employment, arguing that the termination was discriminatory on the grounds of her gender.  The district court ruled in favor of the claimant; however, on appeal the regional court quashed the decision and dismissed the case.  The claimant appealed to the Supreme Court which held that the termination was unlawful for a number of reasons.  Firstly, the employer failed to perform its legal obligations to enable the claimant to take the oath. Secondly, the acts of the employer with respect to the termination of employment were discriminatory.  The employer had disadvantaged a certain group of its employees, in particular those on maternity leave, by failing to provide them with notice about the new requirement to take the oath, breaching the prohibition of discrimination established in labor relations.  This was in breach of the prohibition of discrimination under Section 13 of the Labor Code of the Slovak Republic.  Lastly, the Supreme Court held that the employer had abused its rights as an employer, which is in violation of moral principals.  The Supreme Court further held that the termination would have been lawful if the employer had duly informed the claimant about the new regulations and provided her with a chance to comply with them, and ordered a re-examination of the issue by the district court.



Commission of the European Communities v. United Kingdom European Court of Justice (1983)

Gender discrimination

The Commission brought a charge against the United Kingdom for failing to fully implement the Directive 76/207. The Commission’s complaint is that the legislation enacted in the United Kingdom does not state that provisions contrary to equal treatment in any collective agreement will be void. The UK legislation also has an exception for private households and the practice of midwifery. The Court decided that the UK failed to meet its obligations under the treaty.



Johnston v. Chief Constable European Court of Justice (1986)

Gender discrimination

A new regulation was instituted that women in the Royal Ulster Constabulary would not be given firearms to carry or trained in them. Johnston was a police officer who filed a complaint of sexual discrimination. The Court recognizes that the policy was instituted by the Chief Constable to protect women from risks and that it is up to a national tribunal to determine whether this type of action meant for public safety is allowed in light of Directive 76/207.



Commission of the European Communities v. France European Court of Justice (1988)

Gender discrimination

The Commission brought proceedings against France claiming that it failed to adopt all of the measures required by Council Directive 76/207 within prescribed time. The French government argues that removing special rights for women that are in place should be left to the two sides of industry. However, the Court thinks that leaving industry to work out the issue through collective negotiation without any time limit is unacceptable and the French Republic violated the treaty.



Public Ministry  v. Stoeckel European Court of Justice (1991)

Gender discrimination

The region had a national law that women cannot be employed in working at night, especially in factories and plants. Suma was a company that had to lay off people and switch to a continuous shift-work system because of economic difficulties. Thus, it had women employees work night shift as well, which violated French Law. The company argued that Article 5 of Council Directive 76/207/EEC demanded equal treatment for men and women when it comes to working conditions. The Court ruled that the directive was specific enough that the Member State was obligated not to pass the legislation it had.



Hofmann v. Barmer Ersatzkasse European Court of Justice (1984)

Gender discrimination

The plaintiff is the illegitimate father of a child and took off work to take care of the child for a while. He applied for maternity leave and was turned down by the defendant, his employer. The country’s court decided that the legislation only permitted maternity leave and no paternity leave. In interpreting Directive 76/207, the Court decided that it was not meant to force member states to grant the same leave to fathers even if that is what the parents decide.



Commission of the European Communities v. Italian Republic European Court of Justice (1983)

Gender discrimination

The Commission brought an action against the Italian Republic that they failed to properly implement legislation adopting Directive 76/207. The Commission argues that the Italian government did not properly implement certain requirements, such as equal working conditions, into national law. The Court notes that Article 189 of the EEC Treaty permits a country to implement its own form of legislation. There is no infringement of Directive 76/207 if the national law lets anyone bring the matters covered under the Directive before the courts. So the Court found for the Italian Republic.



Dung Thi Thuy Nguyen v. The Netherlands CEDAW Committee (2006)

Gender discrimination

Dung Thi Thuy Nguyen worked part-time as a salaried employment agency worker as well as together with her husband as a co-working spouse in his enterprise. For her salaried employment, Nguyen was insured under the Sickness Benefits Act (ZW), and for work at her husband’s enterprise she was insured under the Invalidity Insurance (Self-Employed Person) Act (WAZ). When Nguyen applied for maternity leave in 1999, she received benefits from her ZW insurance, but her WAZ insurance denied her coverage because of an “anti-accumulation clause” which allowed payment of benefits only insofar as they exceed benefits payable under the ZW policy. Nguyen objected to the withholding of her benefits and applied for review with the Breda District Court, who dismissed the complaint. The Central Appeals Tribunal upheld the lower judgment on appeal, stating that the WAZ insurance policy did not result in unfavorable treatment of women as compared to men. Nguyen’s complaint to the Committee cited a violation of article 11, paragraph 2 (b) of the Convention on the Elimination of All Forms of Discrimination against Women under which the State party is obligated to introduce maternity leave with pay or with comparable social benefits without loss of former employment, seniority, or social allowance. The Committee held that it is state’s discretion to determine the appropriate maternity benefits within the meaning of article 11 for employed women, and separate rules for self-employed women accounting for fluctuated income and related contributions did not amount to a violation. The dissent, however, argued that the law of the Netherlands which provides for a financially compensated maternity leave for women who are both salaried and self-employed does not take into account the situation of these women who work more hours per week than a full-time salaried employee entitled to full maternity benefits. The anti-accumulation clause, therefore, constitutes indirect sex-discrimination because the policy assumes that mainly women work as part-time salaried employees in addition to working as family helpers in their husband’s enterprises.



Memoranda

Exclusion of women from the legal profession in the United States of America, the United Kingdom and South Africa (2012)

Employment discrimination, Gender discrimination

This memorandum provides a brief overview of the key statutes, cases, and legal arguments that sanctioned the exclusion of women from the bar and, by extension, the bench, in the United States of America, the United Kingdom, and South Africa.



Reports

Exclusion of women from the legal profession in the United States of America, the United Kingdom, and South Africa (2012)

Employment discrimination, Gender discrimination, Harmful traditional practices

Although great strides have been made in breaking down the barriers that have previously kept women from being able to have the same rights and privileges to work in the legal profession that men enjoy, there is still progress to be made.