By Mike Toten Freelance Writer

A lawyer with a past history of unsuccessful claims of discrimination has failed again, this time failing to prove that a law firm refused to hire him because it preferred female candidates.

Facts of case

The man was interviewed via Zoom for a position as a solicitor. The interviewers, a principal and senior lawyer at the law firm, were both females, and he described them as “very attractive and beautiful”. All solicitors then employed by the firm were women, but it had other male staff and had employed male solicitors previously.

The man’s first name was Dawn, and he claimed he was only invited to an interview because the employer assumed he was female. The interviewers rejected his application on the grounds that they considered it possible he might not remain with the firm for long (mainly because he would be required to relocate from Adelaide to Sydney) and his presentation at the interview was “stilted and formal” and rapport during the interview was not established. The other two applicants for the job were women, and one of them was offered the job. Both already lived in Sydney and attended live interviews.

The man claimed that the following occurred during the interview:

  • The senior lawyer’s demeanour became “unfriendly” when she met him because she was expecting to meet a woman instead.
  • To emphasise the informal workplace culture, which included not being required to wear suits at work except when in court, the principal said the job "is not about wearing a suit”, which she would not have said to a female applicant. (he wore a suit to the interview).
  • The interviewers emphasised that the firm was committed to supporting employees’ family responsibilities, which he claimed discriminated against men. He claimed the interviewers described it to him as a formal policy, which the interviewers disputed, claiming it was not a formal policy but simply what they tried to do for all employees.

He claimed that, because he had found the interviewers to be very physically attractive, the hurt and humiliation caused to him by rejecting his application was greater.

He sought an apology from the law firm, damages of $5,000, payment of legal costs, and that the interviewers be ordered to write in red pen “I like men” 10 times and email a copy to him.

The law firm rejected his claims of discrimination and claimed that his case was frivolous and vexatious.

Decision

The NSW Civil and Administrative Tribunal rejected his claim, finding that the comments made by the interviewers were not discriminatory and that the man had “failed to establish rapport” with the interviewers. There was no evidence that the interviewers only interviewed him because they assumed from his name that he was female.

Although some aspects of the man’s claims were frivolous or vexatious (for example the “I like men” demand), overall his case was not vexatious.

It noted that the man had previously made an unsuccessful claim of race discrimination against another law firm for not hiring him and an unsuccessful claim for discovery of documents against a third law firm that refused to hire him. He had also made other discrimination-related claims against other organisations.

What this means for employers

In employment discrimination cases, the onus is on the employee or applicant to prove that discrimination occurred, not the employer. In this case, he failed to prove that the employer’s reasons for rejecting his job application were due to his gender.

Read the judgment

Anters v D G Thompson Pty Ltd [2023] NSWCATAD 109 (10 May 2023)