The Times today:
‘Clumsy’ sexist remark by BAE Systems manager costs £360,000
A manager’s “clumsy” comment to a secretary that “women take things more emotionally than men” will cost Britain’s biggest arms manufacturer more than £360,000.
BAE Systems argued that the law had gone mad and attacked the payout to Marion Konczak for “a single sexist comment” as “an affront to justice”.
Three appeal court judges ruled yesterday, however, that Mrs Konczak, 62, was due every penny after the manager’s comment led to her having a mental breakdown.
BAE was working on a project for the Royal Saudi Air Force when Mrs Konczak complained that she had been bullied and harassed, including sexually. Her line manager later told her that “women take things more emotionally than men, whilst men tend to forget things and move on”.
The judge opined,
“The basic rule is that a wrongdoer must take his victim as he finds him, eggshell personality and all. That is not inherently unjust.”
Emphasis added. And Lord Justice Underhill might like to reconsider his use of “he” as a generic third person singular pronoun. I expect someone from Diversity will be calling him in for a quiet word in due course. On the other hand, perhaps it becomes acceptable if the alternative suggests that a “victim” with an eggshell personality might conceivably be female?
As a commenter called Geraldine said,
Will this encourage companies to employ more women? The cause of feminism is set back years [e]very time something like this happens. I say this as a woman and old-school feminist.
Somewhere Thomas Sowell wrote that manufacturers in the US avoid building factories in black areas, not because they care what skin colour their workers have, but because the more diverse the workforce the greater the risk of being sued for discrimination.
Added later: In the comments below Umbriel explained why the judge might have used those particular words:
…“eggshell personality” is a legal term, not technically an insult (though, it the shoe fits…). The theory was an extension of earlier doctrine that if, for example, someone smacks another person in the head during an altercation, and the victim happens to have some sort of congenital defect or calcium deficiency, such that their skull shatters and they die, the assailant remains responsible for the damages resulting from their assault even if they couldn’t have anticipated the magnitude of the result. This was dubbed the “Thin Skull Doctrine”. When tort law evolved to apply that principle to the infliction of emotional distress, the corollary was dubbed the “Eggshell Personality Doctrine”.
The problem with said doctrine, of course, is that a thin skull is a thin skull, regardless of the law. “Eggshell Personalities” in contrast, can be expected to proliferate and become ever more brittle the more lucrative they become.
Depressingly true.
Wait a minute… So the comment by the manager that ‘women take things more emotionally than men’ led to the woman having a mental breakdown? Has anyone else noticed the irony?
Alisa, are you implying something along the lines of “the proof of the pudding…”?
Ironic indeed!
Good catch. :>)))
I did! 😉
These sorts of restitution are really a feature of the current system, not a bug. They “spread the (ill-gotten) wealth) around to the oppressed, provide additional employment opportunities for the legal profession and all those academic hangers-on who get to create the issues and then testify in legal proceedings, and something for the Guardian, the NYT, and the BBC to bloviate about, to justify their existence. And then there are the additional hard statistics about how words can cause physical harm! Determined by a court of law, no less!
I guess we should at least be happy that one judge took the opportunity to insult the plaintiff. Probably the best we can hope for from now on …
Gene — “eggshell personality” is a legal term, not technically an insult (though, it the shoe fits…). The theory was an extension of earlier doctrine that if, for example, someone smacks another person in the head during an altercation, and the victim happens to have some sort of congenital defect or calcium deficiency, such that their skull shatters and they die, the assailant remains responsible for the damages resulting from their assault even if they couldn’t have anticipated the magnitude of the result. This was dubbed the “Thin Skull Doctrine”. When tort law evolved to apply that principle to the infliction of emotional distress, the corollary was dubbed the “Eggshell Personality Doctrine”.
The problem with said doctrine, of course, is that a thin skull is a thin skull, regardless of the law. “Eggshell Personalities” in contrast, can be expected to proliferate and become ever more brittle the more lucrative they become.
Umbriel, that’s really interesting; thanks for teaching me something new! Now I’m wondering: Did this judge have to use that term, i.e., is it part of the basis for the legal decision, and/or would any other judge have done the same? Or did he, cheeky bastard that I very much hope he is, choose to use it as a way to insult the plaintiff while maintaining plausible deniability under a veneer of legal terminology?
I can’t read the full article because it is behind a paywall, however, I wonder if there is more to the story. It says she “complained that she had been bullied and harassed, including sexually.” Sexual harassment is not some minor slight, and if the manager had dismissed her accusation of something more serious with a flippant remark like that then the woman does have a right to complain, perhaps even sue.
I might be reading more into it than that but I prefer to think the law is not quite that stupid yet.
Yes, Alisa, that’s the first thing I noticed, too. Seems to be to be absolute confirmation of the comment.
Umbriel’s description is a good explanation of an old common law doctrine, but I especially liked his last sentence. Seems correct to me.
But Fraser’s remark seems on point, too. It’s very possible that the award had more to do with compensating her for what (from the report) appears to be serious sexual harassment even if it wasn’t phrased as such (perhaps because her counsel didn’t include it in the complaint but the judges wanted to infer it sub silentio).
Freedom of Speech is important and Freedom of Association is also important – and “anti discrimination” law violates both.
As for the development of the Common Law – “judge made law” depends on judges. In the past judges were (mainly) a certain sort of people in the opinions – now they are(mainly) another sort of people in their opinions. The sort of person who thinks that it is reasonable to award hundred of thousands of Pounds over a minor remark. Our way of selecting judges is wrong – fundamentally wrong, the “university types” are the sort of person who the system picks as judges, and they are exactly the sort of person who should NOT be judges.
So…if the societal “justice” consequences are the same as saying “JESUS, Shut the FUCK UP you sniveling whiny BITCH! Now get back to actual WORK!”….
(or the GB equivalent)
And if “judges” are going to be unanimous in “because vagina”…(of both sexes, and all races)
Just sayin’
Interestingly, this appears to be what we in the USA would consider a Workers Compensation sort of case, and the award was for the three or so years worth of lost wages the claimant suffered due to her depression which, she claimed, resulted from her employer’s faulty reaction to her complaints of sexual harassment and bullying.
Sounds as if the employer was not able to make a case that there was some other instigator to her illness than her workplace experience, culminating in the comment by her manager. Her original items of complaint were eventually dismissed, but her manager’s comment was found to be the trigger of her illness.
Here’s the case review of the 2014 Order upholding the original award, and here’s the 2015 review of that Order. (It’s a very long process.) The recent action simply upholds the Order again.
It stems from a 2007 dismissal, so a significant chunk of the award is interest.
Feminism might’ve been a cause once, but now it’s simply an alliance of activists & their organizations whose only shared goal is “Goodies for the wimmyns”.
Gene – Most likely he used the term to be as explicit as possible, because the theory of the case hinged on that doctrine. He also used the term “a wrongdoer must take his victim as he finds him”, which is the traditional phrasing justifying the “thin skull/eggshell personality” doctrines.
We had a case here in the States over a decade ago where a couple of teenage girls tried to do a good deed for a known-to-be-cranky neighbor by leaving cookies on her porch late at night. The neighbor heard someone on her porch who didn’t answer her calls to identify themselves, and ended up in the hospital having a panic attack. The girls were held liable for a couple thousand dollars in emergency room fees on the same theory, though enough news outlets picked up the story that donations poured in sufficient not only to cover the girls’ loss, but to start college funds for them.
Once again:
The perversion of THE legal system into a means to ends.
bobby b, if the judgement is essentially for lost wages, that suggests she had no actual claim for compensation on day 1. She had to wait years to accumulate this “loss” and only then was it worth the cost and risk of a court action.
At the OP rate, Rotherham’s Labourites and SJWs owe more than £500 million to all those girls whom they said were slappers who asked for it, etc.
Oops, sorry, I forgot – those girls mostly did not have nervous breakdowns but just dealt with it. I recall seeing an interview with one who talked vey sensibly about how her mother was now her best friend, but when she was 13 she went through a phase where her mother’s ‘behave and be ware” warnings were something to rebel against – until she found, too late, how wise they were, and how little “the authorities” dared to care.
And even if some of those girls did have nervous breakdowns that’s different because shut up.
Still, at least it provides a counter-example to “women take things more emotionally”; I recall being somewhat impressed by that girl’s ability to handle what had been done to her.
😡
Honestly, I think there is a lot of spouting off on this but a lack of basic facts. The woman claimed she was harassed and bullied. Sexual harassment can mean anything from “Nice shoes love” to “Sleep with me or I’ll get you fired and you’ll never work in this industry again.” If it were the latter and she brought it to her line manager who dismissed her as being too emotional I think you can understand that she might have a pretty bad reaction to that, eggshell or not.
Then it really comes down to what duty an employer has to its employees. My preference would be that such things be defined by the contract of employment (actually my preference would be that we make something as ugly as employment go away for ever and replace it with freely entered into transaction based work, but that is an argument for another day.) In our legal systems though employer’s obligations are a combination of contractual obligations and a set of default legal rights and obligations defined by statute and regulation. If his actions caused a violation of this combo contract then the courts are right to issue in her favor.
The violation doesn’t seem to be in what he said, but the fact that he failed to take her potentially justifiable complaint seriously, which lead to significant damages to her.
It is easy to take it as just “feminism gone wild” but I think there is more to it than that.
Is it possible for a statement to be both sexist and true?
No.
She should have just resigned, Fraser, instead of staying in a company where she was unhappy for another couple of years to the point of having a mental breakdown, then leaving, and then demanding to be let back in. The fact that your boss is a real jerk (which he may well have been) does not mean that he owes you employment. And, it’s not feminism that has gone wild, but victimhood (although on second thought that may be a distinction without much difference).
You know I am not with you on that Alisa. Certainly there is no right to a good boss, however, I have run companies before and I assure you if one of my managers was doing stuff like sexually harassing one of their reportees I would want to know and I would want to fix it. Not out of fear of the legal repercussions (though certainly that too) but simply because if I hired her I presume she is a great contributor and one of my jobs as the big boss is to remove obstacles that prevent my people from giving their best efforts and producing their best work. So I wouldn’t want her to resign, I’d want it reported to HR or to me so that it could be addressed.
Of course putting it in the realm of the criminal or civil law makes the whole thing messed up. But I think it is wrong to say “she should have resigned”. How would you feel if you had to quit a job you loved because one single asshole in the whole place decides to use his petty power to threaten you in exchange for sex, or even some lesser offense? I know if it were me I’d be pissed as hell and want to fix it. (Though, being a man, I’d only be crying on the inside… lol)
Actually, it was the opposite. The two case orders listed above indicate that her original complaints of sexual harassment were eventually dismissed by the court as not meeting the legal threshold of harassment, but the specific words used in the comment by her manager were deemed to meet that threshold. Her only cognizable injury came about because of the injurious effect of those specific words.
Fraser, you seem to have missed the part where she was not working for you, but for a jerk. Nothing good ever comes out of associating with jerks – whether through employment, or through any other mode of interaction. If I was treated badly by an employer (either the boss himself, or some of his employees with him doing nothing about it), I’d want to get as far as possible from such people.
The company on the paying end of this case, BAE Systems, supported staying in the EU.
The reason that the compensation in this case is as high as it is, is EU law, which required that the cap on compensation in discrimination claims be abolished.
So BAE Systems got EU law shoved up their backside, without lubrication or warning.
Just a shame that others have to live with the same law, for now, anyway.
Surellin
Yes, indeed. Truth is no defence to a claim of a detriment on account of sex or any other ‘protected characteristic’. E.g. Saying ‘She has Great Tits‘ may be true, but it could also be harassment as creating an offensive environment on the ground of sex for anyone, man or woman, who hears it and is upset by it, even if it is actually a reference to some pet Parus major, as the effect of a comment can be considered in establishing liability, not just the purpose of it.
Or for example, saying that ‘On average, women are less strong than men, and so are generally less suited to delivery driving if they need to lift heavy packages.’ could well be true, but it is also sexist and be, or could indicate, less favourable treatment on the ground of sex.
Ed, it now occurs to me that different people may define ‘sexist’ differently. Just as with ‘racist’.
Alisa,
I am referring to what ‘plays’ in court in the UK only, i.e. what gets you in hot water. As I said of Ludwig von Mises ‘There was never a man so hated, as he who told the truth.’.
Simpliciter, no. To say a true statement is also sexist is to say that sexism is true. To say a true statement is also racist is to say that racism is true. For sexism and racism to be false, true statements cannot be sexist or racist. A particular true statement could be compatible with sexism or racism but for these isms to be false it must also be compatible with a complete absence of racism and sexism.
(In the hypothetical example of Mr Ed (August 2, 2017 at 8:21 pm), it is the rudeness of the hypothecated statement in its given context, not its accuracy, which makes the criticism. Whether the actual endowment of the lady truly merited the description or not is irrelevant to its rudeness.)
As Mr Ed notes at August 2, 2017 at 9:16 pm, political correctness, in court as elsewhere, has not enough truth to recognise the above.
Alisa
> Fraser, you seem to have missed the part where she was not working for you, but for a jerk.
I’m pretty sure that is a compliment! Thanks Alisa!
> Nothing good ever comes out of associating with jerks – whether through employment,
I’m not sure I agree with that. the iPhone was created by a jerk and that is pretty great. Edison was known for being a jerk and he did some pretty cool stuff. I imagine working for either of them would be both a horrible experience and a profoundly rewarding one too.
Plus if someone complained to me about a manager behaving that way, a good talking to might change his ways, and if not I might say bye bye to the manager. After all, managers are pretty over rated compared to do-ers. Scrooge was a pretty horrible boss, but after he got a good talking too, Bob Cratchett got a Christmas turkey.
So I say God bless ’em, every one.
@bobby b, thanks for clearing up the legal situation. Looks like I read more into it than I should and all the outraged spouting off is pretty much on mark.
Stop arguing with Alisa! You don’t want her to have a breakdown, and sue you, do you?
That’s a true statement.
It’s also sexist.
You’ve answered Surellin’s question!
I am actually saying that we don’t want that to happen, not that it must happen! If it states the truth, then it is not sexist. For instance, women have breasts, is true, but it couldn’t be sexist, even though it is about an aspect of sex.
Point taken, Ed.
Nicholas does know what’s good for him (and the rest of you misogynists!)
Fraser: yes, ‘nothing good’ was too sweeping a statement. I guess it depends on one’s position in the corporate food chain: the woman in question was a mere secretary, while someone in a more creative role with more overall influence in that company may have had a more rewarding experience, possibly making him or her more willing to overlook a certain degree of jerkiness from his or her bosses.
That said, I’m sure Apple and similar have had their fair share of people leaving while loudly banging the door behind them, with others coming in and trying their luck with the various jerks serving under the Top Jerk. Plus, the fact that the Top Jerk is seen as such by whoever cares to opine publicly, does not necessarily mean that he is perceived as such by people who actually stuck with him through the years and never bothered talking to the press (if any). To put it shortly, these things tend to be complex, like anything that has to do with human nature. My only point in all this is that personally I’d either leave, or stay and take the place and the people in it as they are, warts and all. Staying, and then filing criminal complains and suing for damages seem incompatible to me, personally.
Oh, and you are certainly most welcome!
It is far more important that our Masters show us their will, and bend us to it, than that something you might call “justice” or “reason” prevail.