“Baby brain” leads to $150,000 order against employee

An employee had her sex discrimination claim thrown out by the Federal Circuit Court of Australia and was ordered to pay her employer’s Court costs, despite allegedly being called a “baby brain” by her local manager.

In Yeoh v IBM Australia Limited [2015] FCCA 724, Ms Yeoh argued that her employer, IBM Australia Limited (IBM), had discriminated against her on the grounds of her gender and family responsibilities.  Ms Yeoh worked as a software engineer for IBM on a full-time basis, and had been employed by the company in various roles from 2004.

In May 2009, Ms Yeoh requested and was approved to work 20 hours a week from home to accommodate flexibility for her as a young mother.

As part of her claim, Ms Yeoh alleged that she was subsequently given a workload which was not capable of being performed within the contracted 20-hour period and that she was being paid less than her husband (who also worked for IBM), thereby amounting to discrimination.  Ms Yeoh also argued that her employment issues caused her marriage to break-up.

While she was in the witness box, Ms Yeoh went on to suggest that her local manager had once called her a “baby brain”.  Although an allegation of this kind would typically work to support a sex discrimination claim, the Court was skeptical, particularly in light of the fact that the employee had failed to ever mention this allegation in her two lengthy affidavits.

IBM was able to present to the Court a trail of correspondence which evidenced that:

  • Ms Yeoh’s managers were supportive of her requests to leave work and/or take leave attend to her family responsibilities;
  • Ms Yeoh had not been shy about making complaints/comments previously (which detracted from her “baby brain” claim);
  • It was Ms Yeoh who had volunteered comments on her productivity and mental state, and there was no record of her managers commenting on same;
  • At no stage did her employer, or any officer of the IBM, direct Ms Yeoh to work beyond her contracted 20-hour week; and
  • When Ms Yeoh did raise with her employer the proposition that she was working hours beyond 20 hours per week, that she was told that she should not be doing that, and that she should only be working 20 hours a week.

In these circumstances, the Court rejected Ms Yeoh’s claim.  Judge Street concluded as follows:

I was impressed by the level of care and concern for the applicant that each of those involved in her management for the respondent displayed despite in what were obviously difficult circumstances in dealing with the applicant. I am satisfied that the respondent took all reasonable steps to prevent the applicant from being exposed to any conduct of an unlawful nature. I find that the applicant was not exposed to any conduct of an unlawful nature in contravention of the Sex Discrimination Act.

Ms Yeoh was ordered to pay IBM’s legal costs in the amount of $150,000 due to her unreasonable rejection of a settlement offer made by IBM for the parties to bear their own costs and end the matter before hearing.

This decision highlights the importance of employers keeping contemporaneous records in respect of communications with employees, particularly of discussions about terms and conditions of employment.  While the onus of proof lies with an applicant who lodges a sex discrimination claim, the decision in Yeoh shows that an employer’s evidence is crucial in defending it.