Business and Human Rights  |  Hannah Bowley

Gender Discrimination at Work: Global Litigation Trends

Gender discrimination at work has recently been raised in the global public consciousness. From the #MeToo movement instigating Harvey Weinstein’s conviction earlier this year, to the ongoing COVID-19 pandemic highlighting how women are disproportionately exposed to the virus due to their places of work. Within the legal sector, the Law Society of England and Wales have produced a report on ‘The Need for Gender Equality in the Legal Profession’. A4ID believes that through gender discrimination litigation, lawyers can use their skills to positively impact broader development issues, in particular Sustainable Development Goal (SDG) 5: Gender Equality, as well as SDG 8: Decent Work and Economic Growth.

Ryan Brown for UN Women

One of A4ID’s focuses for its ‘thought leadership’ work is the fast-evolving area of business and human rights. A4ID has partnered with the Business and Human Rights Resource Centre to conduct research on corporate legal accountability cases. As part of this work, the global law firm Sidley & Austin LLP have produced a research paper on litigation against companies for gender discrimination of employees. The paper analyses cases from Canada, China, Colombia, South Africa, the United Kingdom and the United States, bringing together common themes of global importance. One key trend that the paper highlights, and the focus of this piece, is the increasing use of instruments other than traditional employment law to raise discrimination claims within an employment context. In particular, human rights legislation and tortious mechanisms, which are a means for redressing harm caused to an individual, are being used.

Human Rights Law: Protecting Women at Work

In the Colombian case of LATAM Airlines, the complainant, a female former co-pilot at the airline, alleged gender discrimination by male superiors during her promotion process. The Constitutional Court of Colombia ruled that the plaintiff had been wrongly dismissed. Although the Court did not find the contract termination to be a gender discriminatory act, it ruled that due process had not been followed. This case demonstrates the breadth of the protections that human rights legislation can provide to individuals who are discriminated against at work. The Ombudsman’s Office of Colombia – the government agency responsible for safeguarding human rights within the law – encouraged the Constitutional Court of Colombia to hear this case largely on the grounds of special protection of women’s rights. It is encouraging that this claim could be heard before this court, as it highlights the importance and urgency of rectifying any infringement of the right to equality.

This case also suggests a narrowness and inefficiency of standard employment legislation in this jurisdiction. Colombian labour law, under Law 1010 of 2006, provides protection from harassment based on gender, defined as “persistent and demonstrable conduct taken against an employee by a co-worker, superior or boss, with the purpose of generating fear, intimidation, terror and anguish, or of inducing that employee’s resignation”. However, although recent case law in Colombia has started to establish greater protection against workplace discrimination, Colombian employment law is regarded by some legal analysts as being flexible with regards to dismissal. Alongside this, Constitutional actions (“tutela”) through the Constitutional Court have built on the anti-discrimination laws within the Constitution, ensuring immediate protection of fundamental rights.

In the LATAM Airlines case, the Court noted that raising this claim as a Fundamental Rights Claim (“acción de tutela”), was the most appropriate method as it “offers a rapid and timely intervention in preventing the infringement of the right to equality of the plaintiff, for whom the normal judicial mechanisms are inefficient”. This raises questions around the usefulness of employment legislation in Colombia for employees with discrimination allegations. Firstly, if there is an “implicit subordination found in every employment relationship”, as highlighted by the Court, should this right not be protected explicitly under employment legislation? Secondly, why can gender discrimination claims not be resolved in a timely manner in a standard labour court? It is comforting that the Constitutional Court encouraged future gender discrimination cases within an employment context to be brought to them, to ensure the protection of fundamental human rights. Yet, this does not preclude an analysis of a) why this level of protection is apparently not provided by the normal labour tribunals, and b) how these procedures could be accelerated.

In fact, the Court did not rule the complainant’s dismissal to be a gender discriminatory act but found that the right to due process had been violated. The right to due process ensures equal treatment of all through a fair procedure being followed. Guaranteeing the right to due process was highlighted by the Court as a means through which employers should ensure job security for women in the male-dominated commercial aviation industry. This is notable, not only as the right to due process was linked to women’s rights and anti-discrimination, but also because this type of claim is usually brought against public sector institutions or authorities, rather than private entities. As such, this case broadens the application of the right to due process to an employment context, where an employee is inherently in a subordinated position to the employer, mimicking the relationship between state and citizen. This case provides a blueprint for how human rights legislation can produce a favourable outcome for a workplace discrimination claim, as the defendant was ordered to reinstate the plaintiff into her pre-dismissal role. This was because the right to due process had not been followed prior to the dismissal.

In another instance of women using human rights legislation to raise a gender discrimination claim, the Canadian case O.P.T and M.P.T v Presteve Foods Ltd. and Jose Pratas was heard in the Human Rights Tribunal of Ontario. The ruling held that the defendant, Jose Pratas, who at the time owned Presteve Foods, continuously committed acts of sexual assault against two female migrant workers and created “a sexually poisoned work environment”. This violated the plaintiffs’ rights under the Human Rights Code to freedom from sexual harassment and solicitation in the workplace. Additionally, Presteve Foods was found liable for Pratas’s violations, thus the judge ordered both defendants (Presteve Foods and Pratasto pay compensation, including pre-judgement interest, to the two female plaintiffs. 

Bringing their claims under employment law was in fact not an option for these women. As foreign workers, who came to Ontario from Mexico on a temporary work visa, Pratas had ultimate decision-making power to send them back to Mexico without any chance to review or appeal this decision. As such, this case emphasises how human rights legislation applies to all employees in Canada, regardless of their residence status. It simultaneously highlights a vast limitation of employment legislation for foreign nationals employed on temporary work permits. This suggests a lack of robustness of employment law in this jurisdiction in the context of gender discrimination against temporary foreign workers. 

 Notably, the Human Rights Tribunal of Ontario awarded damages of a far higher amount than it had awarded in past cases. In this case, C$150,000 was ordered to be paid by both respondents to one of the plaintiffs, and C$50,000 to the other plaintiff. Prior to this case, compensation awarded by the Tribunal had ranged from C$500 to C$15,000. The Tribunal awarded an exceptional amount in this case to reflect the seriousness of the human rights violations, damaging the plaintiffs’ self-respect, dignity and confidence. This suggests to potential plaintiffs that using human rights legislation can be a worthwhile option to pursue a discrimination claim, particularly if they hope for substantial reparations to compensate for deplorable treatment by an employer. 

Delictual Liability: A Legal Mechanism for Redressing Harm

In the South African case of Adila Chowan v Associated Motor Holdings (PTY) Ltd, Imperial Holdings Limited and Mark Lamberti, the plaintiff Chowan used a common law mechanism – delictual (tortious) liability. Delictual liability is incurred when an individual is responsible for causing injury to a person, or for injury caused by a person within their guardianship. The plaintiff alleged that she suffered financial loss due to her employer’s mishandling of grievances she made about sexist and racist comments in the workplace. The judge ruled that the plaintiff’s former employer, Associated Motor Holdings, was liable for economic damages after the plaintiff’s unlawful suspension following her complaints about gender- and race-based discrimination. Additionally, the judge ruled that the parent company, Imperial Holdings, and the CEO of Imperial Holdings, Mark Lamberti, were jointly and severally liable for damages due to impaired dignity regarding sexist and racist remarks that Lamberti made towards Chowan.

The plaintiff did not bring her claim under the specialist South African employment legislation, but rather on the common law of “actio legis Acquilia for financial loss and the “actio iniuriarum for harm to her dignity. Using these tortious mechanisms was an unusual decision in a gender discrimination case brought by an employee in South Africa. The plaintiff may have chosen this method because she did not wish to reclaim her former role, or perhaps because she was seeking greater damages than an ordinary labour court can grant (up to two years’ wages). This would suggest that the labour courts are unable to compensate for the severity of the financial loss and personal injury that she suffered. The use of this tortious instrument may be especially meaningful when used by senior employees, due to the high likelihood of reputational damage and heightened financial risk to the company resulting from claims brought by such employees. This is because the more senior the employee, the higher their pay and thus the higher the pay-out from the company if the court orders economic damages to be paid for lost salaryThe favourable ruling for the plaintiff in this case – the defendants were ordered to pay damages, the amount for which to be decided at a later hearing – suggests that this method of redress is a viable route for others who wish to bring a gender discrimination claim. Simultaneously, it highlights that employment law in South Africa may benefit from examination to ensure it can adequately redress the severity of harm caused when employees experience gender discrimination within their career. 

Gender Discrimination: A Private Matter?

The American case of Ribeiro v. Sedgwick LLP is one example of many in which workplace gender discrimination disputes are settled privately due to forced arbitration clauses. Arbitration is a process of resolving disputes without using the court, also known as a type of alternative dispute resolution (ADR). This recent case saw the plaintiff Ribeiro, a top-performing female lawyer at Sedgwick LLP, allege a work environment characterised by systematic gender discrimination and a gender pay gap. 

Ribeiro intended to bring a class action case on behalf of herself and other female employees at the firm; this method allows multiple plaintiffs to bring a joint case to court alleging the same legal wrongdoing. However, a District Court upheld the implementation of arbitration clauses, contained within the plaintiff’s contract, in employment discrimination disputes. The Court ruled that Ribeiro possessed the necessary intellect to understand the arbitration clause that was included in her partnership agreement, which she signed on becoming a non-equity partner at Sedgwick LLP. This also included the latter-added delegation clause which stated that the arbitrator would “determine whether or not the Dispute should be subject to the ADR Process”. Therefore, in this case the only option for any disputes related to the plaintiff’s employment were subject to arbitration and the question of whether arbitration should be the process for dispute resolution was itself subject to arbitration, due to the delegation clause. 

This case highlights the courts actively upholding the principle of contractual freedom, including in the context of gender discrimination claims. Not only are arbitration clauses increasingly common in employment agreements in the US, there is also a growing trend in the courts enforcing these arbitration clauses, under the Federal Arbitration Act. This suggests a reluctance to deal with gender discrimination issues openly in court, when they are raised under active arbitration agreements. 

 Concerningly, arbitration clauses make it very difficult for employees to take their employer to court for discrimination. Xinying Valerian, Senior Litigation Counsel at Sanford Heisler LLP, who represented the plaintiff, commented that “arbitration agreements, like Sedgwick’s, are too often used by companies to deter employees from seeking the justice they deserve”. Instead it is most likely that disputes will be settled behind closed doors, as in Ribeiro v. Sedgwick LLP. This confidentiality means that employers can escape public scrutiny and hide toxic cultures of gender discrimination. It may also discourage employees from raising disputes around gender discrimination in the workplace at all. Some of the reasons for this include that it is harder to appeal an arbitration decision than a court ruling, it is often impossible to bring a class action within arbitration and there are limitations on discovery – that is evidence exchange between the two parties. Furthermore, the lack of a jury within arbitration often means that a lesser sum is awarded to the employee. These issues raise strong concerns for anyone who seeks justice in cases of alleged gender discrimination at work. 

 These four cases from varied jurisdictions highlight a trend of leveraging legal instruments other than traditional employment courts to redress gender discrimination at work. They highlight how different types of law can offer vital protection of rights, while also shedding light on some areas of employment legislation that may need the legal community’s further examination and potential review. 

For more details, please see the complete background research available here.

Hannah Bowley