Should you ever sue your boss?

Carol Howard has won her discrimination case after two years.

Carol Howard has won her discrimination case after two years.

When it comes to suing your employer for discrimination or harassment the law is on your side. Or is it? 

In Australia, we’ve had the Sex Discrimination Act since 1984 and the Racial Discrimination Act since 1975. Similar laws exist in most Western countries. But enforcing these laws can make your life a living hell. 

The recent case of British police officer Carol Howard, is a painful illustration of the high price that people can pay for speaking out against discrimination. 

Howard sued the Metropolitan police for sex and race discrimination after repeated harassment, including her boss ordering junior officers to ask about her sex life and whether she was sleeping with a colleague. 

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Aside from the stress of litigation, she also had to endure further harassment and reputation damage as retribution for speaking out. 

‘The only reaction from the police was to smear my name by releasing misleading details of my arrests,’ said Howard at the conclusion of the case. 

The allegations against her included assaulting her ex-partner, harassment, making threats to damage property, alleged possession of an indecent photo of a child under 16, witness intimidation and perverting justice. Most of these charges have been dropped but she is still fighting to clear her name against some of them.

Despite winning her case and being awarded £37,000 for damages, Howard’s victory has been hollow. 

‘I have been put through a two-year ordeal in which I have been bullied, harassed and victimised simply because of my gender and race. No amount of compensation will ever make up for the hurt and upset that I have been caused.’

Associate Professor Beth Gaze from the University of Melbourne’s Law School says that suing an employer can be a career-limiting move.

‘It’s incredibly stressful for an individual suing an employer,’ says Associate Professor Gaze. ‘And once it’s out in the open, if it goes beyond a confidential settlement, then you’re going to be forever identified as the person who made that complaint and any future employer who searches the internet will know about it.’ 

In this respect the person who was harassed may face more long-term damage than the harasser. 

Former David Jones boss Mark McInnes, for example, doesn’t appear to have had too much difficulty moving on from his high profile sexual harassment case. Despite admitting he had behaved 'in a manner unbecoming of a chief executive to a female staff member', he landed a job as the chief executive of Premier Retail. 

Meanwhile, Kristy Fraser-Kirk, who sued him for sexual harassment, was repeatedly called a gold-digger and a liar, is no long an Australian resident and is said to be working on a fresh start. 

As well as the reputational damage, women need to consider the financial costs of making a claim against their employer. 

Dr Gaze says that under state jurisdiction an employee’s legal costs could be in the tens of thousands of dollars. In the federal jurisdiction, where you may be ordered to pay your boss’s costs if you lose, you could be risking hundreds of thousands of dollars. 

‘For an employer it’s just part of their business and they often have as many resources to throw at it as they want, but there is a huge amount riding on it for an individual,’ she says. 

And even if you win, the damages payment may be so low that there’s not a lot left after you’ve paid your own legal costs. 

‘Historically, most sexual harassment compensation would be in the $10000 – $20000 thousand range,’ says Kamal Farouque, principal of employment & industrial law at Maurice Blackburn Lawyers. 

Change is on the way, with some recent cases paying around $100 000, but it is slow in coming. 

‘Most litigation doesn’t run to the very end,’ says Mr Farouque. ‘In my experience over 90 per cent of cases settle before they run to a final hearing.’ 

But it’s not just about the money. Mr Farouque says that many of his clients are, above all, seeking justice. 

‘A lot of people in cases of sexual harassment are deeply aggrieved at the terrible treatment they have received. They want to get some justice and have people brought to account for their behaviour,’ he says. 

But should women have to risk their life savings, reputations and future employment opportunities to fight for justice? 

Dr Gaze says that it’s unreasonable to expect individuals to enforce these laws. 

‘For Occupational Health and Safety we have an inspectorate that is prepared to enforce the law and there is the Fair Work Ombudsman, a government regulator, who is resourced to do some of that enforcement. But for sexual discrimination and harassment we leave it to individuals to sink or swim,’ she says. 

‘If we are serious that we don’t want sexual and racial discrimination and harassment in the workforce then there should be some mechanism for public assistance.’ 

If fighting against discrimination and harassment wasn’t such a David and Goliath battle then people may be more willing to stand up for their rights instead of keeping quiet when their bosses break the law.

 

Kasey Edwards is a writer and best-selling author. www.kaseyedwards.com