Monday, April 2, 2012

Extreme sexual harassment case was like a war, judge finds that the accuser lied

Vivienne Dye, a former Commonwealth Bank employee, sued her ex-company for sexual harassment and discrimination, but a judge has issued a scathing opinion dismissing her claims. Much of the evidence given by Ms Dye was "knowingly false," and she had added and omitted events in a "bewildering fashion," the judge said.  Ms Dye's account of the alleged incidents had over the years been "progressively altered, re-recorded, edited, polished, embellished and even substantially changed as though it was a novel," the judge found.

Ms. Dye singled out two of her superiors, Michael Blomfield and Angus Patterson, and claimed they sexually harassed her and that Mr Patterson raped her in her apartment.  The judge ruled that "all of the allegations against the men were false and should not have been pursued."

In fact, it was Ms. Dye who made advances on Mr. Blomfield, hoping for a ''close and intimate relationship'' with him. Mr. Blomfield rebuffed her, so Ms, Dye then ''turned from seeking his attention to a desire to be revenged on him."

Mr Patterson testified that in 2007, Ms Dye told him she was filing a sexual harassment case against Mr Blomfield: ''I'm going to get that c---, and I'm going to f---ing destroy him and his family.'' But Mr. Patterson, who had been Ms. Dye's good friend, confidant, "constant and probably uncritical supporter," declined to assist in her vendetta against Mr Blomfield, so Ms Dye turned on him, too, claiming that he violently raped her in her apartment in June 2006, and that a few days later he attempted to sexually assault her. (This, despite the fact that Mr. Patterson visited her apartment three days after the "rape" to watch a soccer match.)

Ms. Dye also claimed Mr Patterson made a number of unwelcome sexual advances. Among them were this one: "Have you ever been to Tuscany?"  That, according to Ms. Dye, was a proposition for sex. The judge did not agree. 

The judge also found that Ms Dye lied when she claimed Mr Blomfield "exposed a dirty big tattoo" on his backside, because Mr Blomfield did not have any such tattoo. On another occasion, Bureau of Meteorology records were produced to prove it wasn't raining on a night Ms. Dye said she shared an umbrella with Mr Blomfield.

On and on it went. In all, four years, a mind-numbing 94 days of oral hearings, 600 documentary exhibits and nearly 8000 pages of transcript.  The judge's opinion was a whopping 239 pages in length.

So, yes, the bank "won." But its legal fees (which the judge ordered Ms. Dye to pay) likely will never be collected in full. The two employees singled out by Ms. Dye have left the bank. The judge said that despite his judgment vindicating the men, the ''stain'' on their reputation would be impossible to remove.

Andrew Bolt, writing in the Herald Sun, wrote: "The laws and courts which feed our culture of complaint now make the process the punishment. . . . . Worse, the process is so ghastly for the accused that it's usually easier even for the innocent to pay up, rather than fight. . . ."

Susie O'Brien, writing in the same newspaper, had a different take: "It is important that people, such as Dye, who make false claims of sexual harassment and rape, are harshly dealt with. Such claims, if vexatious, have the power to ruin reputations, careers, marriages, and even end lives. They also generate considerable ill-will towards sexual assault victims, thus discouraging others from coming forward. So I agree with commentators, including the Herald Sun's Andrew Bolt, in their condemnation of Dye. But I do not believe this one example of a vengeful vixen is evidence of a rampant 'culture of complaint'. The truth is in fact the exact opposite. Although the destruction wrought by false accusations can be enormous, more widespread is the underreporting of legitimate cases of sexual harassment and sexual assault. Too many women - and yes, about 85 per cent of victims are women, so I'm not merely being sexist - put up with too much for too long. Further, many of those who do complain are ignored, or punished as a result, and many end up dropping their case before it goes anywhere. There is no culture of complaint when it comes to sexual harassment and sexual assault."

A personal observation. I have successfully litigated sexual harassment claims on behalf of employers, and based on my own experience, the scope of the Dye litigation was extreme and atypical.  Any civil trial can be an ordeal, and even small cases can sometimes turn into runaway litigation for all sorts of reasons, but sexual harassment cases generally are no more complex (and, in my experience, they are generally less so) than garden variety disputes involving allegations of breach of contract between two companies.  I agree that ours is a "culture of complaint" -- but about everything, not just sexual harassment. Sexual harassment cases differ from other commercial disputes in that the harm, either to the accuser or the accused, tends to be more personal, affecting more than just a company's bottom line (an abused employee can suffer greatly, and a wrongly accused supervisor has a very difficult time shaking the stigma). Thankfully, such claims, in my experience, are not rampant, but they can be abused (sometimes, an employer will be hit with a string of claims over time from several terminated employees filed by the same attorney -- much of the problem is that the courts do not adequately punish attorneys for filing frivolous claims).  For those who claim women abuse these laws, it is well to remember that EEOC claims by men are skyrocketing.

The employer in this case is to be commended for fighting on despite the fact that it almost certainly could have settled for less than the cost to defend this action. If companies want to reduce the costs of litigating sexual harassment claims, they need to do this: when a claim is made, they need to immediately and fairly investigate it, and if there is merit to it, they need to redress the problem internally so that other employees can see that it takes such claims seriously. Then the employer needs to try to settle that claim. For claims that are clearly false or frivolous, the employer needs to fight those vigorously to send a message to other employees and to attorneys who would abuse the process by filing frivolous claims. In my experience, other employees who work with the accuser generally know what is going on inside the company and have a good sense when a claim by a co-worker is legitimate or nonsense. When a company vigorously defends against a frivolous claim, that does nothing to discourage other claimants who have legitimate claims from coming forward.  Companies need to stand by their wrongly accused employees as a price of doing business.

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