M S v Philippines, Communication No. 30/2011, UN Doc. CEDAW/C/58/D/30/2011
A sexual harassment case was recently declared inadmissible by the Committee on the Elimination of Discrimination against Women. The complaint concerned the use of gender stereotypes by the domestic courts in the author’s case, amounting to a breach of Articles 5 and 11 of CEDAW. Despite clear examples of gender stereotypes being considered by the domestic courts, the majority of the Committee held there was no evidence that those stereotypes had negatively impacted the domestic court's decision. The dissenting Committee Member found a breach of CEDAW had been substantiated but that the claim was inadmissible as the author had delayed in bringing the case to the Committee.
The author of the communication, M.S, was the Director of the Market and Communication Department at a Filipino telecommunications corporation from 16 August 1998 to 30 June 2000. She was supervised by Mr S and his superior was Mr G, the Chief Operating Officer of the company.
M.S alleges that Mr G assaulted her on various occasions between May 1999 to November 1999. All the alleged assaults took place at social events arranged by the corporations or at parties hosted by fellow employees of the corporation. The most serious alleged assault took place at a party hosted by a fellow employee in November 1999. The alleged assaults took place in view of other attendees of the party and involved Mr G:
- pinning M.S against the end of a sofa and holding her hand to massage it under the guise of looking at a ring;
- poking M.S's vagina several times whilst she was pinned against the edge of the sofa; and
- forcing M.S to dance with him and groping her breasts and buttocks.
After the incident, M.S discussed with Mr S her intention to file a complaint against Mr G. Mr S advised her against taking such action. After this conversation with Mr S, M.S. reported that Mr S' attitude towards her changed. He was hostile to her in interdepartmental meetings, stonewalled her ideas and was critical of the performance of M.S's department. M.S's performance rating, which was given by Mr S, dropped from 90% to 60%. In June 2000 M.S resigned and claimed she suffered from depression following her experience at the company. Despite this, in January 2001 M.S retracted her resignation and sought employment at the company but her request was denied by Mr G.
M.S filed criminal charges of sexual harassment and lasciviousness against Mr G and Ms S with the National Bureau of Investigation in May 2001. The charges were initially rejected in September 2002 by the Office of the City Prosecutor, but after an appeal merit was found in the allegations against Mr G in 2003. The case was ultimately dismissed in 2004 after Mr G passed away.
M.S also commenced proceedings for unlawful dismissal against Mr S, Mr G and the company in 2001 with the Labour Arbiter. The Labour Arbiter dismissed her claim in 2003 on the basis that she voluntarily resigned and that there was insufficient evidence that she was forced to resign due to sexual or professional harassment. Her appeal of Labour Arbiter's decision was rejected by the National Labour Relations Commission. An appeal to the Court of Appeal was successful. The Court of Appeal found that the Labour Arbiter and Commission had "conveniently ignored" various circumstances and that the sexual harassment had led to a form of constructive dismissal. The Court of Appeal's decision was overturned by the Supreme Court, and a motion to reconsider was rejected.
Crucial to the decision of the Supreme Court to overturn the decision of the Court of Appeal was its conclusion that the M.S's account of the events did not confirm with "common human experience" because:
- the alleged assaults occurred in crowded venues and there were no other witnesses to the alleged events;
- M.S did not slap or walk away from Mr G after he assaulted her on the sofa and instead danced with him and failed to "raise hell" after he groped her breasts and buttocks; and
- M.S failed to raise the assaults in her resignation letter.
At one point the Supreme Court stated: 'her resignation would have been an effective vehicle for her to raise it (the harassment). Instead she even thanked the petitioner "for the opportunity of working with [him]." Again this is contradictory to human nature and experience. For if indeed the petitioner [Mr S.] was her sexual harasser, she would have refrained from being cordial to him on her resignation.' This evidence was provided by way of a court transcript.
M.S filed the communication against the Philippines with the Committee on the grounds that by relying heavily on "gender myths and stereotypes" in determining that her conduct did not conform with "common human experience", the Supreme Court breached her rights under the Article 1, 2(c), 2(f), 5(a) and 11(1)(f), being the rights to protection from harmful stereotypes and the right to employment, and safe and healthy working conditions.
The State, in its brief reply, defended the use of the test of 'common human experience'. The State indicated that the test was consistently used across the Philippines and that the evidence provided by M.S lacked sufficient substance and credibility. At no point did the State's reply engage with the examples of gender stereotyping evident in the Supreme Court's transcript.
Under the Optional Protocol, a communication first has to be sufficiently substantiated before the Committee will consider the merits of the case.
A majority of the Committee gave a short judgment and dismissed the communication on the basis it was inadmissible under Article 4(2)(c) of the Optional Protocol for not being "sufficiently substantiated".
In determining that the Communication was inadmissible, the majority relied on the State's argument that the Supreme Court ruling was based upon the fact that the author's complaint lacked substance and credibility. The majority stated that it was the role of national courts to evaluate the facts and evidence in a particular case, unless it could be established that this evaluation was biased or based on gender harmful stereotypes. The majority concluded that the decision of the Supreme Court did not suffer from these defects, accepting the views of the State in their entirety. The majority held thateven if the decision was imbued with gender based discrimination, the author had not demonstrated that the gender stereotypes negatively affected the Supreme Court's assessment of the facts and the outcome of the trial.
Committee member Patricia Schulz dissented. Ms Schulz found that the communication was "sufficiently substantiated" and that there was evidence of gender stereotyping in the Supreme Court's judgment. In particular, Ms Schultz stated that to suggest that all woman would react to an assault in the same was a gender stereotype. She stated that not all women would react to an assault by slapping the assailant and "raising hell", particularly if the assailant was a superior and the assault occurred in the presence of colleagues. Further, not all women would choose to refer to an assault in their resignation letter.
Ms Schultz criticised the majority for failing to accept the evidence of the author, particularly given the fact that the State had neither discussed nor refuted those claims. As the State had failed to provide evidence or argument to the contrary, Ms Shultz held she could follow the reasoning of M.S. regarding the use of gender myths by the Supreme Court and the sexism of the reliance on the "so-called 'human experience'". Ms Shultz held that the use of these amounted to a lack of a fair trial, lack of a remedy and a failure to provide legal protection on an equal basis with men.
Ms Schultz ultimately dismissed MS's communication under Article 4(2)(d) of the Optional Protocol as an "abuse of the right to submit a communication" because it took MS 5 years from the Supreme Court's decision to commence the communication, without a reasonable excuse. Ms Shultz then called for the Committee to institute a one year limitation period for CEDAW complaints to be submitted.
The case highlights the difficulties that still exist, even at the UN level, in obtaining legal recognition of gender based discrimination and harassment.
The case ultimately rested on whether the Supreme Court relied upon gender stereotypes in forming the view that M.S's evidence lacked substance and credibility. In evaluating a witness's evidence and credibility, judges and juries will inevitably draw upon their own assumptions and experiences as to how people 'would' and 'should' act in certain situations. Such assumptions are often coloured by gender stereotypes, myths and sexist attitudes. Seemingly neutral tests such as 'common human experience' can themselves be a form of discrimination as they assume there is a universal ungendered human experience.
The use of such stereotypes and myths were clearly present in the Supreme Court decision, as found by Ms Shultz. However, the majority accepted the assertion by the State that the Supreme Court's decision was not based on gender stereotypes, but rather was based on the lack of substantiation of her claims.
The full decision can be found online here: http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CEDAW%2fC%2f58%2fD%2f30%2f2011&Lang=en
Jonathon Lunn is a Solicitor at DLA Piper.