Farmer v Dorena Pty Limited

[2002] NSWADT 81

CITATION:	Farmer -v- Dorena Pty Limited [2002] NSWADT 81
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Sarah Farmer RESPONDENT Dorena Pty Limited T/A Kyle Management Resources
FILE NUMBER:	001030
HEARING DATES:	03/05/2001
SUBMISSIONS CLOSED:	05/03/2001
DATE OF DECISION:	05/17/2002
BEFORE:	Ireland G - Judicial Member; Mooney L - Member; Silva A - Member
APPLICATION:	Transgender - In work
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:
REPRESENTATION:	APPLICANT In person RESPONDENT R Foley, agent
ORDERS:	1. The Tribunal finds that the complaint of unlawful discrimination against the Applicant by the Respondent has been substantiated; 2. The Tribunal orders that the Respondent pay to the Applicant by way of damages for the unlawful discrimination, an amount of six thousand dollars ($6,000.00); 3. The Tribunal makes no order as to costs.

1 This decision of the Equal Opportunity Division of the Administrative Decisions Tribunal arises out of an inquiry under the Anti-Discrimination Act 1977 (“the Act”) into a complaint made to the Anti-Discrimination Board (“the Board”) by the Applicant on 8 April 1998. After investigating the complaint, in accordance with Section 94(1) of the Act, the Board referred the complaint for inquiry by the Tribunal.

2 The inquiry by the Tribunal was held on 3 May 2001. The Tribunal considered that it was appropriate to delay giving its decision until it had heard and decided on an inquiry into complaints made by the Applicant to the Board on 8 January 1988 and 24 July 1988 in which the Applicant made allegations of a similar nature to those the subject of this complaint, against Jan James Recruiting Pty Limited, which is a recruitment agency involved in a business similar to the business of the Respondent in this inquiry. The Tribunal has delivered its decision in the complaint against Jan James Recruiting Pty Limited contemporaneously with this decision.

THE RELEVANT PROVISIONS OF THE ACT

3 The complaint against the Respondent is one of direct discrimination arising under Section 38B(1)(a) and it is alleged that the discrimination is rendered unlawful under Section 38J(a). The allegations of direct discrimination are on the ground that the Applicant, at the time of the alleged discrimination, was a transgender person within the interpretation of that phrase contained in Section 38A of the Act. The Sections referred to are set out as follows:

“38B What constitutes discrimination on transgender grounds:
(1) A person ( the perpetrator ) discriminates against another person ( the aggrieved person ) on transgender grounds if, on the ground of the aggrieved person being transgender or a relative or associate of the aggrieved person being transgender, the perpetrator:
(a) treats the aggrieved person less favourably than in the same circumstances (or in circumstances which are not materially different) the perpetrator treats or would treat a person who he or she did not think was a transgender person or who does not have such a relative or associate who he or she did not think was a transgender person, or …”

“38J Employment agencies
It is unlawful for an employment agency to discriminate against a person on transgender grounds:
(a) by refusing to provide the person with any of its services, or …”

“38A Interpretation
A reference in this Part to a person being transgender or a transgender person is a reference to a person, whether or not the person is a recognised transgender person:
(a) who identifies as a member of the opposite sex by living, or seeking to live, as a member of the opposite sex, or
(b) who has identified as a member of the opposite sex by living as a member of the opposite sex, or
(c) who, being of indeterminate sex, identifies as a member of a particular sex by living as a member of that sex,
and includes a reference to the person being thought of as a transgender person, whether the person is, or was, in fact a transgender person.”

4 The complainant alleges that Mr Ron Foley, the Managing Director of the Respondent Company, discriminated against her on the ground that she was a transgender person because between 1 March 1998 and 26 March 1998, she sought employment agency services from the Respondent, through her contact with Mr Foley, and that Mr Foley failed to put forward her name, in accordance with his usual practice, to the person in the employ of the Respondent company, who was responsible for the placement of persons with clients of the Respondent, in credit control work.

STATUS OF THE APPLICANT

5 Mr Foley stated that he did not know and therefore could not admit that the Applicant, between 1 March 1998 and 26 March 1998 was a transgender person. The Applicant gave evidence to support the proposition that during that period she came within the interpretation of a transgender person in Section 38A(a) of the Act, as she was a person who identifies as a person of the opposite sex, by living, or seeking to live, as a person of the opposite sex.

6 The Applicant stated that she was born a male and started living as a female in late July 1997. She is presently aged 44 years. She became conscious that she had female tendencies at the age of 13. She first gave consideration to making the change from male to female about 10 years prior to the actions that she took in July 1997. At that time she was aged 40 and she started a course of hormone treatment. In December 1996, she started wearing non-descript clothing, that is, clothes bought from the female section of stores but clothes that did not present as obviously female in their appearance. She did not wear make-up but at that time continued to use her male name. Her last employment as a male was with Seres Australia in May 1997 where she was employed part-time as a credit controller. She left that position in June 1997 after an argument about her hours of attendance. She then attempted to get work both as a male and a female.

7 The Applicant finally decided to make the change to a female after her landlord noticed that she was dressed as a female. This was in July 1997. She decided then to live permanently as a female and she told her landlord of this decision. At that time she told all her friends what she was doing and told them that she would not see them for two years during the change as she felt she would be totally a different person and that her friends needed time to get used to it. She has slowly made re-contact with her friends and she has now got used to her new image. During the period of her change she had no contact with Mr Foley.

8 The Applicant stated that she had a prior contact with the Respondent agency about 10 years prior to March 1998 when, as a male, the Respondent had placed her in a position with Australia Post. That position was terminated because the Applicant had acted contrary to the policy of Australia Post.

9 In the view of the Tribunal, the evidence presented by the Applicant sufficiently demonstrates that in March 1998 she came within the description of a person living or seeking to live as a female. Further support for this proposition is her evidence that in 1997 she did everything necessary to formally change her name. She changed her identification on official documents, for example, her drivers licence, medicare card and her bank-keycard. She stated that she did not have a credit card. She had difficulties with the Social Service Department where she registered for unemployment benefits. The Department refused to change her sex on its records although it changed her name to her new female name. The Department advised the Applicant that legislation prevented the Department from making the change until she had had sex re-assignment surgery, which she had not undertaken. At a later date the Social Security Department changed its attitude when the Job Network System had trouble placing her because of the inconsistent notation on her records with the Social Security Department. She had a similar experience with the Department of Roads and Transport in relation to a new drivers licence as they took the same attitude as the Department of Social Security. She changed her name on her Tax Returns and had no problem in that regard with the Taxation Department. She said that in mid-July 1997 she started using ladies public toilets instead of male public toilets.

UNLAWFUL DISCRIMINATION

10 The Applicant stated that on 1 March 1998 she contacted Mr Foley by telephone to ask whether her transgender change would adversely impact on her chances of being employed through his agency. She stated that Mr Foley told her that he did not think it would affect her employment chances. He asked her what she had been doing recently. She told him of her more recent appointments including an appointment with United Distillers in May and June 1996. Mr Foley told the Applicant that he knew the Credit Manager at United Distillers and that he would contact him to get a reference for the Applicant and that Mr Foley would then contact her.

11 A week later the Applicant had not heard from Mr Foley and she again rang him. The Applicant stated that Mr Foley told her that he had not had time to contact the Credit Manager at United Distillers but he would do so and he would contact the Applicant.

12 By 23 March 1998 the Applicant stated that she had not heard from Mr Foley. On that day she phoned Mr Foley because she had seen an advertisement placed by Kyle Management Resources in the Sydney Morning Herald on 21 March 1998 which advertised a position for part-time credit work. The Applicant stated that she considered that she was fully qualified for the position, as she had mostly worked in credit control. She stated that she spoke to Mr Foley about her application for that position. The Applicant said that Mr Foley stated that the client wanted a female. The Applicant then related the following conversation with Mr Foley:

The Applicant: “What do you think I am now?”
Foley: “They wanted a woman who had kids because of the hours which were more suited to a woman with kids.”
The Applicant: “I am a woman and would do part-time work.”
Foley: “They wanted a woman – a vanilla woman.”

13 The Applicant stated that she does not remember making a further comment to Mr Foley. She said that she was angry and upset and that she hung up. The Applicant then typed a letter on her computer and she sent that letter to Mr Foley. A copy of the letter dated 25 March 1998 was tendered to the Tribunal. The letter outlines the telephone contacts between the Applicant and Mr Foley and it stated:

“If I do not hear something positive from you by midday tomorrow, 26 March 1998, I will be lodging a complaint with the Anti-Discrimination Board of NSW as I have already done with Jan James Agency, the Credit Specialists.”

The letter goes on to refer to the attachment of a resume of the Applicant’s last few years of employment.

14 The Applicant stated that she had no further response from Mr Foley.

15 On 8 April 1998 the Applicant faxed a notification of a complaint against Mr Foley to the Board.

16 The Applicant stated that she had been living as a woman for 8 months without getting work. She had seen jobs advertised in this period by Kyle Management Resources but she realised that they were not appropriate for her. She stated however that the job advertised on 21 March 1998 was suited to her experience. She said that she considered that Mr Foley refused to acknowledge that she was a female because of his statement that the clients wanted a woman. This was emphasised, in her opinion, when Mr Foley stressed that what he wanted was a woman with kids. She said that the most hurt she suffered from what Mr Foley said to her, was his reference to “a vanilla woman”. She stated that she considered such a reference to mean a person who was a heterosexual woman, that is, who was not gay or lesbian, and that the phrase included reference to persons who would not practice bondage and servitude. The Applicant stated that when Mr Foley used that expression, she understood him to be indicating to her that because she was a transgender person, Mr Foley was not going to give her work.

17 The Applicant also stated that she recalled during her conversation with Mr Foley on 23 March 1998 that she asked him whether he had spoken to the Credit Manager at United Distillers and that Mr Foley had given her a negative response.

18 The Applicant produced to the Tribunal certificates issued to her by TAFE for her satisfactory completion of courses relating to credit work. These certificates show that the Applicant had passed TAFE courses relating to credit control work. Her resumes, which were produced to the Tribunal, refer to periods when she had worked in temporary positions in credit control.

19 In relation to the advertisement of 21 March 1998, the Applicant stated that she had lost her copy of the advertisement and was not able to produce a copy and there was no other evidence before the Tribunal of the exact description of the work experience required for the position that was advertised. The Applicant stated that she had little difficulty getting employment up until July 1997, except during the recession period between 1990 and 1991.

20 Mr Foley agreed that he had telephone conversations with the Applicant on 21 March 1998 and 23 March 1998. He said that in his conversation on 23 March 1998 regarding the position that was advertised, that he was merely relaying to the Applicant what the client wanted. He agreed that he used the phrase “a vanilla woman”. He said that this indicated a woman with no complications. He said that he used the phrase “vanilla woman” on a number of occasions and always in the context of a woman without complications. He said that the phrase could mean anything at all and that it does not relate to the inferences that the Applicant had sought to make from the use of the words.

21 Mr Foley did not deny that he told the Applicant that he would check her reference and get back to her. He said that this was his usual practice and that when he was too busy he sometimes had complaints about not returning phone calls. He stated that it was his practice that he personally did not get involved in making appointments to positions. He employed nine consultants whose job it was to deal with the candidates and the clients. He said that he merely passed onto a consultant, persons who had contacted him for appointment and that he had no further contact with how the consultant dealt with the candidate or the client. He said he did not know if any consultant had sent the Applicant’s resume to a client. Mr Foley said that the consultants were trained for their role but he agreed that the training did not involve training in relation to anti-discrimination. He said that his company did not have a stated policy relating to Equal Opportunity issues, which was available to its staff.

22 When questioned further about what he meant by the phrase “vanilla woman” and his reference to the client wanting a woman with kids as a requirement for the job advertised on 21 March 1998, Mr Foley stated that he said the job had flexible hours and that the client thought that a woman with children would be more able to fit in with the different hours. When it was pointed out to him that it was more likely that a woman with children would be less flexible or less able to work under flexible time periods, Mr Foley was unable to explain why a woman with children would be better able to comply with the requirements of the position. Mr Foley further explained that his understanding of the term “vanilla woman” was a woman who did not have complications, which would interfere with her ability to work flexible hours.

FINDINGS OF THE TRIBUNAL

23 The Tribunal is satisfied that at the time when the Applicant first contacted Mr Foley on 1 March 1998, she came within the description of a transgender person in Section 38A of the Act, as she was a person who identifies as a member of the opposite sex by living as a member of the opposite sex. Although she had not submitted to any surgical procedure to effect a change of sex, she had affected sufficient indicia of a female such that she herself identified as a female and she would have been identified as a female. At the beginning of the telephone conversation with Mr Foley on 1 March 1998, the Applicant made it clear to him that the purpose of her call was to ascertain whether he had any difficulty in putting her forward for employment in her transsexual state. Mr Foley confirmed to her that her status would not be an issue in her employment.

24 The Applicant’s condition was also made apparent in the heading on the resume that she sent to Mr Foley on 25 March 1998.

25 The Tribunal is also satisfied that Mr Foley took no action to place the Applicant in employment suitable to her qualifications and experience. Mr Foley did not, as he undertook to do, check with the Credit Manager at United Distilleries on the Applicant’s employment reference with that company. Mr Foley explained his lack of response on checking the Applicant’s reference, to he being too busy to check the reference or to take any other action on the Applicant’s application. Although Mr Foley did not state in relation to the Applicant’s application that he had not taken any action to refer her circumstances to one of his consultants who made job placements, the Tribunal is satisfied that he did not do so and that between 1 March 1998 and 26 March 1998 he had taken no steps to process her application.

26 In relation to the advertisement in the Sydney Morning Herald on 21 March 1998, the Tribunal finds Mr Foley’s explanation for considering that the Applicant did not meet the client’s criteria for a female who could meet flexible hours of work by stating that the position would be available only to a woman with children, as implausible. His explanation for the use of the term “a vanilla woman” to describe the type of woman who would be best to meet his client’s requirements as a woman with children, is also implausible. Mr Foley’s explanations of the type of woman suitable to meet the job requirements for this position and his explanation of the use of the term “vanilla woman”, in the opinion of the Tribunal, are unsatisfactory and are not considered by the Tribunal to be the true explanation of the reason why Mr Foley sought to explain to the Applicant why she was not an appropriate candidate for that position.

27 The use by Mr Foley of the term “vanilla woman” in the context of his consideration of an application for a job by a transsexual person can be readily understood by that person as a reference to her transgender status. Mr Foley’s explanation to the Tribunal that he intended by the use of the phrase to distinguish the Applicant from a woman who did not have complications which would interfere with her ability to work flexible hours, such as a woman with children, the Tribunal rejects as implausible. It is also, in the view of the Tribunal, insensitive to a transgender person who is desperately trying to be placed in employment.

28 It is the view of the Tribunal that the explanation given by Mr Foley to the Applicant for the reasons why the Applicant was not suitable to be referred to the client who is seeking a person of the Applicant’s qualifications, demonstrates that Mr Foley had determined that he was not prepared to put forward the Applicant as a candidate for positions for which she was qualified. The failure by Mr Foley to take any positive action in support of the Applicant’s candidature, by processing her application within the Respondent’s organization, between 1 March 1998 and 26 March 1998, combined with the unsatisfactory and insensitive response by Mr Foley to the Applicant for his failure to bring her forward as a candidate for the position advertised on 21 March 1998, establishes that Mr Foley treated the Applicant’s application for employment less favourably than he would treat an application for employment by a person with similar qualifications and experience as the Applicant, and who was not a transgender person.

29 The Tribunal has determined that the reason for Mr Foley’s lack of response to the Applicant’s application and his failure to submit her candidature for the position advertised on 21 March 1998 was because he considered that the Applicant, being a transgender person, was not suitable for employment through his agency. Mr Foley, decided not to present the Applicant to his clients, because of her transgender status, and sought to dissuade the Applicant by his response to her in relation to the job advertised on 21 March 1998, from maintaining her application for employment through his agency.

30 Mr Foley was successful in his purpose. The Applicant stated that she was so angry and upset by Mr Foley’s response to her in the telephone conversation of 23 March 1998 that she did not persist with her application for employment with the Respondent. The Applicant stated that she considered Mr Foley was discriminating against her because of her transgender status and that he was deterring her from persisting in seeking employment with his agency.

31 Mr Foley sought to introduce material and reference to incidents relating to the Applicant referrable to periods after 26 March 1998. As this material and incidents had no bearing on the treatment of the Applicant by the Respondent up to 26 March 1998, the Tribunal did not have regard to what occurred after that date.

SUMMARY

32 It is the conclusion of the Tribunal that, as a result of the inaction and attitude adopted towards the applicant by the Managing Director of the Respondent company, Mr Foley, the Respondent has discriminated against the Applicant by treating her less favourably than it would have treated a person in the same or similar circumstances who is not a transgender person and that discrimination was on the ground of the Applicant being a transgender person.

33 It is the view of the Tribunal that the discrimination of the Applicant by the Respondent was unlawful under Section 38J(a) as in the circumstances the Respondent refused to provide the Applicant with services which it would normally provide to a person who applied to it to be placed by the Respondent into positions for which the person is qualified and experienced.

34 In reaching its decision that the Respondent refused to provide the Applicant with its normal services, the Tribunal has had regard to a submission made to it in the subsequent inquiry by the Tribunal into the complaints of the Applicant against Jan James Recruiting Pty Limited. While it was not necessary to decide the issue in the latter inquiry, the Tribunal became aware in that inquiry that a recruitment agency of the nature of the Respondent’s business distinguishes between appointments made by the agencies of temporary employment with a client and positions filled with a client on a permanent employment basis. It may be argued that whether the appointment be temporary or permanent that the agency in all cases acts as the agent of the client to whom it provides a service but does not provide a service, within the terms of section 38J, to an applicant for employment, whether or not the agency effects an appointment of the Applicant.

35 A submission that the Respondent to this inquiry did not provide a service, in terms of Section 38J, to the Applicant, was not made by Mr Foley in his submissions to the Tribunal. There was no evidence before the Tribunal as to the details of the manner in which the Respondent makes placements of applicants with clients of the Respondent. Putting the position at its best from the point of view of the Respondent, if it is assumed that when the Respondent places an applicant in employment with a client that the Respondent is acting on behalf of the client in effecting the placement, it is still open to hold, in the opinion of the Tribunal, that the Respondent is providing a service to the applicant within the provisions of Section 38J and in particular within the provisions of Section 38J(a) of the Act.

36 The Act being remedial legislation requires a broad interpretation and application of its provisions. Giving a broad construction to Section 38J, the provision of services by a recruitment agency of the nature of the Respondent’s business, to a person who is seeking recruitment, is not an unnatural application of that provision in the context of unlawful discriminatory conduct which can be suffered by an applicant at the hands of an agency.

37 The circumstances of this complaint demonstrate that the Applicant sought the assistance of the Respondent to find her a position within the scope of the agency’s business. The agency did not reject the Applicant as unsuitable or unemployable for positions within the agency’s range of business. Mr Foley undertook to the Applicant to get back to her about employment once he had checked her reference with United Distillers. He thereby undertook to provide her with a service and he impliedly undertook to continue to provide his usual services to her if her reference was satisfactory. The usual service to an applicant would involve the assessment of the Applicant’s experience and qualifications and a connection between that experience and qualifications with clients’ requirements for filling a position. The Tribunal accordingly holds that the Respondent in the circumstances of this complaint, refused to provide those services to the Applicant.

DAMAGES

38 The Applicant presented no evidence of economic loss consequent upon the unlawful discrimination that she suffered. The Applicant was unemployed at the time of her application to the Respondent on 1 March 1998 and on 26 March 1998, and on 8 April 1998, the date of her complaint to the Board, the Applicant was still unemployed. No evidence was put before the Tribunal as to rates of pay which might have been obtained by the Applicant had she been successful in being employed by the Respondent nor was there any evidence of the subsequent period after 8 April 1998 for which the Applicant was unemployed. In the absence of any evidence or submissions by either party on the question of economic loss, the Tribunal is not able to make an award based on specific loss. It is noted that in the Points of Claim filed by the Applicant no order is sought by the Applicant in respect to economic loss.

39 The Points of Claim seek an award of damages in the amount of $15,000.00, which the Tribunal has interpreted as a claim for general damages based on the humiliation and consequent stress suffered by the Applicant as a result of the unlawful discrimination that she suffered. The period covered by the complaint is slightly more than a period of 3 weeks from 1st March 1998 to 26 March 1998. In that period the Respondent failed to honour the undertaking of Mr Foley to check the reference of the Applicant and to get back to her to discuss her employment prospects. The Applicant described her frustration at this lack of response. In addition, the insensitive response by Mr Foley on 23 March 1998 in expressing the reasons why he considered the Applicant was not suited for the position advertised on 21 March 1998, caused the Applicant, correctly in the view of the Tribunal, to interpret Mr Foley’s response as a rejection of her application on the ground of her transgender status. The Applicant described that she was angry and upset and determined that she would not persist with her application to the Respondent, as a result of Mr Foley’s humiliating response to her. The Applicant is entitled to be compensated for this humiliation and stress. In the view of the Tribunal an appropriate award is the sum of six thousand dollars ($6,000.00).

ORDERS OF THE TRIBUNAL

(1) The Tribunal finds that the complaint of unlawful discrimination against the Applicant by the Respondent has been substantiated.

(2) The Tribunal orders that the Respondent pay to the Applicant by way of damages for the unlawful discrimination, an amount of six thousand dollars ($6,000.00).

(3) The Tribunal makes no order as to costs.