Too Much of a Coincidence? Evidence of Tendency to Prove Sexual Harassment Claims

by K&L Gates LLP

In a decision that has wide reaching implications for future sexual harassment claims, the Federal Court has found that an applicant is entitled to bring evidence of their employer acting in a similar manner towards other employees to assist them in proving their allegations of sexual harassment.

The Case

A former employee of Rivers (Australia) Pty Ltd (Rivers) brought an application in the Federal Court of Australia (the Court) under the Sex Discrimination Act 1984 in which she alleged that the company's owner sexually harassed her during her employment[1]. In support of her claim, the employee made an application to call evidence of the owner's treatment of two other former Rivers employees. She alleged that the evidence of the other two employees established a tendency by the owner to engage in a “calculated pattern of sexual pressure and harassment” towards his female employees. The company contested the admission of the "similar fact" evidence.

In the first case of its kind, the Court examined detailed outlines of evidence from the two employees containing statements about the conduct of the owner towards those employees. In assessing whether the evidence was admissible, the Court looked at whether it was sufficiently similar to the allegations made by the applicant to reveal a propensity in the owner to act in a particular way towards his female employees.

The Court was also required to assess whether the evidence had "significant probative value". In answering this question, the Court considered the extent to which the evidence could rationally affect the assessment of the probability that the alleged sexual harassment occurred. Relevant to this assessment was the number of times the conduct occurred, the space of time between the conduct, the degree of similarity between the conduct and the circumstances in which it occurred.

The Court ultimately determined that nine of the incidents sought to be called in to evidence were sufficiently similar to the allegations made by the applicant to reveal a propensity in the owner and that this evidence had significant probative value. As a result, the Court  determined this evidence was admissible as "tendency and coincidence" evidence to assess the probability that the alleged conduct of the applicant could be correctly characterized as sexual.

However, the majority of the evidence that the applicant sought to rely upon was excluded on the basis that it was too dissimilar to the particular facts of her case or too general in nature to be of assistance. 

Implications for Employers

The case is significant because the question of whether to admit tendency or similar fact evidence in civil proceedings of this kind had previously not been considered by the courts.

The ability to rely on this sort of evidence in sexual harassment cases increases the prospect of complainants undertaking a fishing expedition to uncover other people who have made similar complaints about a particular employee. For example, complainants may seek discovery of any previous complaints against their alleged harasser. This gives rise to obvious issues regarding the privacy of employee records. Further, previous claims may be the subject of a deed of settlement imposing terms of confidentiality which could be breached by the matters being dredged up in another complainant's court proceeding.

Importantly, the similar fact evidence need not be with regard to proven complaints or even complaints that were actually notified to an employer.

Tendency and coincidence evidence may also be relevant in relation to an internal investigation of allegations of sexual harassment. Where evidence is otherwise in conflict, it may be open to the investigator to take evidence of similar allegations into account when assessing the probability that the sexual harassment occurred.

[1] Robinson v Goodman [2013] FCA 893


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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