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Help is at hand for those discriminated against

23 November 2016

Many people, particularly minorities and women, may feel under attack following recent world events.

United States President-elect Donald Trump has recently shown onlookers that repeated sexist comments will not preclude an individual from taking the Oval Office.

Noteworthy remarks from the reality-TV-mogul turned politician include: "If Hilary Clinton can't satisfy her husband, what makes her think she can satisfy America?"

Trump labelled former Miss Universe, Venezuelan actress and model Alicia Machado, as "fat" and called her "Miss Piggy".

He then attempted to invalidate Machado's support for Clinton by saying she had previously starred in a sex tape.

Perhaps the most shocking revelation of all was a video of Trump talking with Access Hollywood host and member of the Bush family, Billy Bush, about grabbing women "by the pussy" and saying "when you are a star they let you do it".

Trump attempted to dismiss the gravity of his comments, calling it "locker-room talk", implying support for a culture that tolerates inappropriate behaviour and sexism.

While the world of Donald Trump seems far away from New Zealand, behaviour like this is not removed from our shores.

During a recent interview, part of which took place in a restaurant, New Zealand's Paul Henry referred to a woman at the neighbouring table as having "perfect titties".

When the woman zipped up her jacket he observed that she had "hermetically f.....g seal[ed] them, in leather".

During the conversation Anneke Bodde, a Mediaworks publicist with Henry, added "Wait until she has children… They won't be perfect then."

It has been reported that Bodde has been subjected to a disciplinary process for misconduct.

There have been no published reports that Henry has been, despite initiating the conversation and making the majority of the distasteful comments.

Reverting to the US, only in the last few days a mayor in West Virginia resigned after 'liking' a Facebook post about US First Lady Michelle Obama.

The post referred to Obama as an "ape in heels". The original poster has reportedly been dismissed from her employment as a result of the media backlash.

What is the significance of these incidents here?

Firstly, it must be recognised that sexual harassment and discrimination are serious issues that are widespread in many countries.

Despite individuals coming forth and challenging how they have been treated by Trump, he is now President-elect of the US, indicating that discrimination and sexual harassment is widely tolerated in society.

Although the backward elements of society have been highlighted by the highly-publicised US election, it is important that individuals maintain their entitlement to dignity and don't simply accept racial or sexual taunts.

Secondly, New Zealand is not immune to such conduct. However, when it occurs on our shores, we can do something about it.

In the 2004 Employment Court case involving Shona Spadotto and Lighthouse Tavern, Spadotto was sexually harassed by patrons while working at the tavern and had to rely on the bouncer to stop them badgering her.

At a subsequent meeting with management, several female employees complained that they too had been harassed and suggested that patrons who harass staff should be asked to leave.

The employer bluntly told the women "if you don't like it … you can f..k off".

The court upheld an award of $7000 for distress within the wider unjustified dismissal claim.

The court also stated that employees are entitled to expect their employer to comply with legal requirements to prevent harassment in the workplace.

People who feel they have been discriminated against sexually, racially, or in any other proscribed way in the course of employment, are entitled to bring a case before the Employment Relations Authority or Human Rights Review Tribunal.

Discrimination of any form is prohibited by the Human Rights Act. The Employment Relations Act also prohibits discrimination in employment, reinforcing the rights of employees.

Holding perpetrators responsible in the Human Rights Review Tribunal is a powerful tool as the average damages awarded for distress since 2014 were $42,500.

Awards in the employment jurisdiction for similar cases are significantly lower, as seen in the admittedly older Spadotto case.

This suggests the tribunal is the most advantageous place to lodge a claim of this type. The tribunal also has the benefit of being able to hear claims unrelated to employment.

The difference in remedies granted by these institutions will inevitably be rectified in time when the Court of Appeal hears a relevant case and updates guidelines to ensure uniformity in awards between the two jurisdictions.

Underlying prejudices have surfaced through events such as the US election and Paul Henry's comments. However, our judicial institutions play a positive role in moderating the ugly underbelly of human behaviour.

For those facing harassment or discrimination, there is help at hand.

Cullen - The Employment Law Firm was one of the first eleven law firms in New Zealand approved to provide employment law services to Government and the public sector.

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