A reminder that discrimination isn't discrimination when everyone's treated like that

The failure of Anna Francis and Maureen Murphy to win their cases against Nomura goes to show that sex discrimination isn't that easy to argue.

Francis, a former director and Murphy, a senior analyst, earning 250k and 55k respectively, had their cases against Nomura defeated on the grounds that their case wasn't, "well founded," and that they were in fact simply made redundant.

Each woman had been claiming 1.5m in damages for loss of earnings and injured feelings, and Murphy had alleged that men at the bank had referred to her breasts as "honkers" and that she'd been told women belonged at home cleaning floors.

The judge said that Francis hadn't proved, "facts from which we could infer that had she been a man or Japanese or both that she would have been treated more favourably."

In the case of Murphy, the judge pointed to a previous case in which it was ruled that, "dignity is not necessarily violated by things said or done which are trivial or transitory, particularly when it is clear that no offence was intended."

He added that the comments allegedly made to Murphy: "were trivial, not intended to be offensive and the Claimant did not feel that her dignity had been violated at the time or that they had created an adverse environment for her."

Employers can also evade discrimination claims through the so-called 'bastard defence,' (although that doesn't seem to have been used in this instance). Despite reports of its demise in the Financial Times two years ago, lawyers say it's alive and well.

"We always check when advising an individual that the employer will not be able to run the bastard defence," says Elaine Aarons, an employment law partner at Withers.

"If someone is horrible to you and you are forced to leave as a result, you may have a claim for constructive dismissal," says Fraser Younson, head of employment law at Berwin Leighton Paisner. "But you won't necessarily also have a claim for discrimination unless you can prove that you suffered a detriment by reason of your sex, race, religion, disability, age, or sexual orientation," he adds.