Fabricated ‘greedy Indian’ slur sees adverse action claim dismissed
A recent adverse action case has highlighted the truth in the adage: “just because a colleague’s words hurt your feelings, it does not mean that what they said is unlawful”. In this case, the worker was widely unliked by her colleagues. And instead of seeing that it was her personality that was causing this dislike, she invented a story that it was due to her ethnicity.
There are, of course, many instances of legitimate racial discrimination in workplaces across the country. But in this adverse action case, the employee cynically used racial discrimination laws to her advantage to take her employer to the Fair Work Commission.
Let’s take a look at the interesting events of this adverse action case. And later, we will share the story of another case of hurt feelings leading to a discrimination claim. In this case, it involved a job candidate who accused a law firm of not hiring him because he was a man. And as part of his adverse action claim, the candidate made a truly bizarre request from his interviewers as penance for their apparent discrimination.
Adverse action case: employee fabricates racial discrimination due to “hurt feelings”
In a recent court ruling, a federal judge has dismissed an adverse action race and sex discrimination claim brought by a Bing Lee employee. The judge emphasised that the case highlighted the “perils of litigating hurt feelings.” It was found that the worker had exaggerated incidents that were primarily rooted in “collegiate small talk.” And that she had taken “petty workplace disagreements” and “cast them in a more nefarious light.”
The Federal Circuit and Family Court acknowledged that elements of the sales representative’s claims had “some factually accurate genesis (even if only a scintilla)”. However, it was found that she had embellished her story to suit a “narrative” that was “not demonstrative of a steadfast recollection of the events”.
Sales representative regularly engaged in “sharking”
The court found that the sales representative “was not especially popular or well-liked” by her coworkers. And as a result, she had “constructed a narrative which explained the dislike as being because she is Indian and/or a woman.”Part of the reason for the sales representative’s dislike among her coworkers was because she regularly engaged in “sharking.” This was described in court as the act of “deliberately usurp[ing] the sales of colleagues.”
The court acknowledged that the sales representative was regarded by her coworkers as “an aggressive salesperson.” And that she had little regard for the “courtesies and etiquette which had evolved on the sales floor.”
Court reveals “greedy Indian” slur was fabricated
The sales consultant accused six of her coworkers of violating the Sex Discrimination Act and the Racial Discrimination Act. She also argued that Bing Lee had failed to take appropriate action and could be held vicariously liable under these Acts.
The primary allegation involved two coworkers supposedly calling her a “greedy Indian.” However, the court uncovered that this was not entirely true. The court found that in one incident a coworker thought that she was sharking his sale, and therefore called her “greedy.” With regard to the second incident, the court found that the sales representative was simply called “greedy” as well. In this case, it was because she had consumed another coworker’s baked treats.
The court said that the sales representative was regarded as “greedy” by her coworkers. Because of her “aggressive approach to sales.” The court found that the “greedy Indian” slur was an “embellishment”. That Bing Lee could not be found liable for any discrimination. “I am not satisfied there were any further steps which could have reasonably have been taken by Bing Lee to prevent the interactions which were later engrossed by [the sales representative],” the court stated.
Court dismisses “Viagra” comment
The sales representati’ve adverse action claim also alleged sexual comments were made that offended her. She alleged that she had asked a colleague about where her manager was. And the reply she allegedly received was “Mario has men’s problems, his penis does not erect and that’s why he has taken off to see doctor to get Viagra.”
The colleague claimed that he had actually said that the manager “might be at the doctor getting Viagra or something.” The colleague’s account of the incident was favoured by the court. It was determined that a reasonable person would not have found the comments offensive, humiliating or intimidating. And the court found that “inherently, ‘Viagra’ is not a dirty word.”
Adverse action claim is dismissed
In the aftermath of these incidents, the sales consultant ceased attending work and subsequently resigned. The judge concluded that the sales representative had “wholly failed to establish the contraventions”. The judge dismissed her case, reserving judgment on costs.
The court also noted that the sales representative had not given due attention to her potential costs until late in the proceedings. This was despite being warned about it multiple times. “It is hoped that at some stage [the sales consultant] will reflect upon what she has contributed to her current plight”, the court said.
Spurned job candidate claims sex discrimination
The recent adverse action case Anters v D G Thompson Pty Ltd [2023] NSWCATAD provides another example of hurt feelings rather than discrimination. The case involves a job candidate who alleged he was not hired by a law firm because he is a man. The job candidate Dawn Anders alleged that Sydney law firm DG Thompson unlawfully discriminated against him. He argued that he had faced discrimination on the grounds of sex and marital status in violation of the NSW Anti-Discrimination Act 1977.
The core facts of this case are relatively straightforward. Mr Anters applied for a Costs Solicitor position advertised by DG Thompson on Seek in February 2021. The job advertisement described DG Thompson as a boutique law firm specialising in legal costs law with offices in Sydney, Brisbane and Canberra. After submitting his application, Mr Anters received an email from Ms Ryan at DG Thompson. In the email, she questioned his residency in South Australia, to which Mr Anters expressed his willingness to relocate for the position.
Employee application is rejected by law firm
A critical event in this adverse action case took place on 22 February 2022, when Mr Anters’ had a virtual interview with Ms Ryan and Ms Rosati. Two other female candidates were also interviewed, and both were eventually offered positions. On 12 March 2022, Ms Ryan informed Mr Anters that he was not offered the position due to the high quality of applicants.
On 29 July 2021, Mr Anters sent a letter to Ms Rosati. In it, he highlighted the nature of the questions that he had been asked during the interview. Mr Anters alleged that the questions were discriminatory against him because he was a man and not married. He also noted that all the solicitors on DG Thompson’s web site were female.
On 10 August 2021, Mr Anters received a reply to his letter from the lawyers representing DG Thompson. They rejected the notion that he had not been selected for the job due to being male. But rather, that the decision had been solely based on the qualifications and merits of the candidates.
Employee makes bizarre complaint to Anti-Discrimination NSW
After receiving this response, Mr Anters made an adverse action complaint to Anti-Discrimination NSW. He invoked sections 24 and 25 of the NSW Anti-Discrimination Act 1977, claiming that he was treated less favorably by DG Thompson due to his sex and marital status. The Act defines discrimination as treating an individual less favorably on the grounds of sex. In his adverse action complaint, Mr Anters stated his belief that DG Thompson did not employ men. He also said that he had been invited to the job interview solely because his first name, Dawn, led to the assumption that he was a woman.
Mr Anters stated that the rejection based on his sex left him “offended, embarrassed and humiliated.” He also remarked how he “found both Ms Rosati and Ms Ryan very attractive and beautiful.” And he claimed that “the magnitude of the offence and humiliation caused by the discrimination of someone to whom I am attracted to is far severe.”
Mr Anters stated that he wanted DG Thompson to pay him $5,000 for “injury to feelings.” He also wanted the law firm’s cost lawyers to write him a letter of apology. Bizarrely, Mr Anters also requested that both Ms Rosati and Ms Ryan separately handwrite in red pen “I LIKE MEN” ten times on a piece of paper. And for them to scan and email this to him.
NSW Civil and Administrative Tribunal hears adverse action case
At Mr Anters’ adverse action hearing, the NSW Civil and Administrative Tribunal stated that the onus of proof rested on him to prove that DG Thompson violated the Anti-Discrimination Act 1977. One of Mr Anters’ central claims was that DG Thompson had a discriminatory policy of not employing men. However, the Tribunal accepted the law firm’s unchallenged evidence that they had indeed employed a male solicitor in the recent past.
Another key element of Mr Anters’ claim revolved around his belief that his name, Dawn, led to the assumption that he was a woman and the subsequent interview invitation. Yet, upon reviewing email correspondence between Mr Anters and Ms Ryan, no concrete evidence was found to back this claim up.
Employee claims body language revealed bias
Mr Anters asserted that certain questions asked and statements made during the interview were discriminatory. For example, he claimed that a female candidate would not have been told, “this is not a job about wearing a suit.” However, the Tribunal did not accept that this comment evidenced a bias against men. Instead, Ms Rosati’s testimony indicated that the comment aimed to convey that the role did not require formal attire for court appearances. The Tribunal found that the comment was not gender-specific and was not indicative of sexist or unconscious bias.
Similarly, Mr Anters contended that references to “family” during the interview were discriminatory. Ms Rosati and Ms Ryan acknowledged that there might have been a reference to family in the context of Mr Anters relocating for the job and the firm’s commitment to supporting staff with family responsibilities. Mr Anters also alleged that Ms Rosati exhibited specific body language. Such as blushing or appearing upset and fidgety during the interview. However, Ms Rosati and Ms Ryan denied these assertions. And the Tribunal did not find evidence to support these allegations.
NSW Civil and Administrative Tribunal dismisses adverse action case
Ultimately, the NSW Civil and Administrative Tribunal rejected Mr. Anters’ adverse action claim for discrimination. The Tribunal subsequently examined the issue of costs. DG Thompson sought costs on the grounds that the claim was frivolous, vexatious, misconceived or lacking substance.
However, the Tribunal determined that Mr Anters’ claim, as a whole, was not frivolous or vexatious. It did find certain elements of his claim to be vexatious, particularly those requesting specific remedies, such as handwritten statements. Nevertheless, the Tribunal did not believe that Mr Anters conducted the proceedings in a way that unjustly disadvantaged DG Thompson.
Conclusion to Hurt feelings. Have your rights been violated at work?
At A Whole New Approach, we specialise in helping those who have experienced workplace harassment, discrimination or unfair dismissal. With over 30 years of experience, we have assisted more than 16,000 workers take action through the Fair Work Commission.
We offer a no win, no fee service and provide a free initial consultation. Don’t delay – act within 21 days from your dismissal date to file a claim. Employers know our reputation, and we’re ready to advocate for your rights.
Reach out to A Whole New Approach today for expert support and a path to justice. Call us at 1800 333 666. Your rights matter, and we’re here to protect them.
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