Employment Law Advocates

There has been much reporting of a US case in which a female banker is alleged to have been dismissed for being too attractive. She says that she was asked to wear less provocative clothing, a request which she considered to be sexual harassment. Three months after making a complaint, she was moved to another branch and was dismissed a month later. According to the bank, this was for poor performance.

Litigators who draft documents are advised to avoid overly pretentious language which, while attempting to be formal and precise, is actually rather ridiculous. I am sure that I am not the only person to cringe at the suggestion that female colleagues were not told what to wear because “their general unattractiveness rendered moot their sartorial choices.” A question mark must also be raised at the attempt to bring the claim in a court in circumstances in which a binding clause in the contract required arbitration to be used.

The definition of sexual harassment in US federal law is similar to the UK definition in section 4A of the Sex Discrimination Act in that it requires unwanted conduct of a sexual nature which has the purpose or effect of creating an intimidating, hostile or offensive work environment. According to the leading case of Meritor v Vinson, the harassment must be sufficiently severe and pervasive, which is an objective test, similar to the requirement in section 4A(2) of the Sex Discrimination Act that conduct complained of must be reasonably considered as having the effect that it has. I strongly doubt that this requirement is made out in circumstances in which no derogatory comments have apparently been made about the employee in question and there have been no more than a few polite suggestions that she should dress differently.

The more interesting claim is for retaliation, equivalent to victimisation, which is made out if the dismissal can be linked to the complaints, regardless of their merits. However, the three month gap between the latter and the former makes this issue difficult to call. Much will turn on the evidence of poor performance.

Less seriously, the New York Daily News provides what is undoubtedly the most striking coverage. For the men, the website helpfully provides twelve posed photographs of the banker who is at the centre of the row, wearing some well-fitting office attire. For the women, the fashion editor observes, “The question isn’t whether Debrahlee Lorenzana was too sexy for her job. It’s where did she get that fabulous pushup bra?”