Comments about bra size lead to $2,500 compensation

Cases

Comments about bra size lead to $2,500 compensation

Comments regarding the physical features of an employee constitute sexual harassment under s22B of the Anti-Discrimination Act 1977.

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Comments regarding the physical features of an employee constitute sexual harassment under s22B of the Anti-Discrimination Act 1977.

Detail

The head waitress of a new restaurant claimed that after a short period of time she was exposed to sexual harassment and discrimination. The woman also claimed that this discrimination resulted in the termination of her employment and significant stress and depression.

The woman made claims regarding the conduct of the restaurant owner and operator in making sexual advances and comments of a sexual nature. These comments included remarks regarding the development of the body of a 16-year-old employee and questions such as ‘what is your bra size?’

The restaurant owner contended that he had not asked the employee her bra size, nor made any remarks of a sexual nature regarding other employees. In addition, he claimed that the employee had become jealous of his relationship with his girlfriend, now his wife, and had propositioned him on several occasions.

In considering the case, the tribunal noted the difficulty in establishing evidence when faced with contradicting statements. It found that a case could be made on the ground that evidence submitted by a third party confirmed that the restaurant owner had in fact made comments about the employee’s bra size.

The tribunal decided that the employee had produced credible evidence about the restaurant owner’s comments. It determined that they were sexual harassment, but the employee had not produced enough evidence to support a claim of discrimination.

With regard to the mental difficulties such as stress and depression suffered by the employee following the harassment, the tribunal found that there were several other circumstances such a marital problems, alcohol and marijuana abuse which may have caused such symptoms.

In addition, the tribunal found that the employee had lied about the difficulties she faced in searching for alternative employment.

The tribunal concluded that a sum in the lower range was appropriate. The employee was awarded a total of $2500 and no costs.

See: Franks v Marco's Italian Gourmet Cafe Pty Ltd & Anor [2004] NSWADT 87.

 

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