Jessica Morath
Partner •
Sydney
Image-based sexual abuse
We acted in all sorts of discrimination cases this year, for clients who had faced race discrimination at school, transgender discrimination in their job, or disability discrimination at inaccessible apartment buildings. Through conciliation (backed up by the real threat that our clients could pursue their complaints with pro bono representation to a more formal Court process), we were able to secure meaningful resolutions which rectified and compensated for what had happened. One of our most creative approaches was in Ally’s case below.
Ally is a young woman, who was doing very well in her first full-time job. One day she was called into a meeting with her boss and sacked. The reason was that the employer been had told in an anonymous text that there was a “sexual video” of Ally being circulated.
You can imagine the embarrassment as Ally explained that she had been pressured months earlier into filming an explicit video and sending it to an older man, who had then shared it without her permission. Ally told the employer that she had been to the police. This did not satisfy her boss, who told Ally that the video could be extremely detrimental to the reputation of the business, and they had to let her go.
Our client very obviously was the victim of a crime. It is an offence under a group of recent laws, known colloquially as “image-based sexual abuse laws”, to distribute intimate images of a person without their consent. At an extremely difficult moment in her life, Ally’s employer chose to victim-blame her.
Losing her job had a huge impact on Ally’s mental health. Ally had been shamed and unsupported by her employer. She was left feeling utterly humiliated, having lost a job which she loved only because she was a victim of image-based sexual abuse.
We recommended that Ally bring a complaint of indirect sex discrimination to the Australian Human Rights Commission. The legal structure of the complaint was that Ally’s employment turned out to be subject to the condition that as an employee, she must not ever be the victim of image-based sexual abuse. Such a condition was indirectly discriminatory on the ground of sex - it is well-understood that women are much more likely to be the victims of image-based sexual abuse than men, meaning that the employer’s condition had the effect of disadvantaging female employees.
We were able to settle the complaint at conciliation for the payment of more than $40,000 and an apology to Ally. She wrote us: "a big thank you so much for everything!!!! You’re amazing lawyers" and told us that she was "crying happy". It was so satisfying to help Ally see some justice and get her life back on track.
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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.