In a recent decision of Robinson v Goodman  FCA 893 (2 September 2013), the Federal Court considered the circumstances in which “tendency evidence” is admissible. This is evidence from individuals other than the plaintiff regarding the defendant’s similar conduct towards them.
Evidence sought to be adduced
Ms Robinson sought to adduce evidence from other individuals (one of whom had their own case of sexual harassment at that time on foot against Mr Goodman) to show that Mr Goodman had a tendency to engage in a “calculated pattern of sexual pressure and harassment”, or a modus operandi of treating some of his female employees. Ms Robinson submitted the pattern or modus operandi was demonstrated by:
- touching female employees’ bodies without their consent;
- calling female employees pet names or nicknames that were unwelcome, of a sexual nature and/or insulting;
- making unwelcome statements about female employees’ sex lives, the sex lives of their partners or relatives, or his own sex life;
- requiring some female employees to adopt the role of his wife or partner during sample shopping trips, including using such occasions to purportedly legitimise other unwelcome conduct of a sexual nature including calling them names such as “hun”, “honey bun” and “honey” and touching, asking about or commenting on their bodies in a suggestive, sexual way;
- requiring or requesting some female employees to try on or model clothing samples including but not limited to jeans, underwear and swimwear in front of him at the company premises, at times or in locations when other staff were not present, despite their hesitation or objections;
- requiring certain female employees to be present at and assist with photography shoots featuring naked models, where a reasonable person in all the circumstances would have anticipated the possibility that the employees would be offended, humiliated or intimidated (“Bonnie shoot”);
- discussing what Mr Goodman perceived to be particular sexual characteristics of races or classes of people to which the employees’ family members belonged, in order to comment inappropriately on them; and
- commenting on employees’ relationships with their partners or spouses including making unwelcome and/or insulting comments about their partners.
Test applied by the Court
Justice Debbie Mortimer acknowledged that this was the first case in which the court had been asked to rule on the admission of contested “tendency evidence” in a proceeding dealing with allegations of sexual harassment.
After taking into account case law developed in respect of section 97 of the Evidence Act in respect of sexual offences, Justice Mortimer considered whether each piece of evidence sought to be adduced by the other individuals was of “significant probative value” so as to be admissible.
Allegations that were held to be “remarkably similar” such as evidence of a re-creation of a “Bonnie shoot” and inappropriate comments were held to be admissible, whilst allegations that were held to be insufficiently similar to any of the facts pleaded as material to the facts in issue were held to be inadmissible.
According to media reports Mr Goodman and Ms Robinson agreed to settle the proceedings “hours” after Justice Mortimer’s ruling. Mr Goodman also settled the separate sexual harassment proceedings brought by one of the other employees who was to give evidence for Ms Robinson.
The admission of similar fact or tendency evidence in sexual harassment cases can be a significant boost to a plaintiff’s case. It can make it easier for the plaintiff to demonstrate the sexual and unwelcome nature of the defendant’s conduct and reduce the propensity of defendants to seek to argue that the particular characteristics of the plaintiff contributed to the conduct.
Overall, this decision emphasises how important it is for employers to be aware of, and monitor, individual instances or allegations of sexual harassment to ensure that it is not the “tip of the iceberg” or that the conduct may occur again in the future. Exit interviews and monitoring of turnover and absenteeism records, as well as responding to and investigating any complaints of sexual harassment in a timely and proper fashion will reduce this risk.
Workdynamic Australia specialises in conducting investigations into matters such as sexual harassment and can assist organisations to address cultural or systemic issues before they reach the media headlines.
This article was written by Jane Wright Director and Principal of Workdynamic Australia. The information in this article is for information purposes only and does not constitute legal advice. You should obtain specific advice relevant to your circumstances.