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Here is part 6 of a range of rights-based arguments on sexual harassment that have succeeded at trial. We explain how underpinning gender stereotypes amounts to discrimination; and how the issue concerned can instead be construed, or, dismissed. It is intended that these arguments can be lifted and rephrased for use in similar sexual harassment cases that take place in a variety of cultural contexts.

 

(1) The defendant attempted to discover the records of the complainant's psychotherapist to demonstrate that the plaintiff's complaint of sexual harassment resulted from her own emotional problems, which caused her to be "oversensitive" to sexual conduct, and not from any "real" harassment.

 

Argument: We argue that the defendant’s argument is based on the stereotype that women are overly sensitive and cannot control their emotions. It also purports the view that women are prone to lying and that they cannot be trusted. The issue of whether the employer had created a hostile, offensive and intimidating work environment is determined by applying an objective test; it does not depend on the plaintiff's subjective state of mind.[1]

 

The focus of the evidentiary inquiry should be on the defendant’s conduct, not on the plaintiff’s psychological pre-disposition. However, were she seeking damages for mental distress caused by the alleged sexual harassment, her psychological well-being would have been in issue and therefore discoverable.[2]

 

[1] Caldwell v Hodgeman 25 Fair Empl. Prac. Cas. (BNA) (USA) 1647 (1981). Discussion accompanying notes p.74-78

[2] Ibid, 1425

 

See all parts of this series here.

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