Austrian Courts:No Protection for Lesbian Employee
Rechtskomitee LAMBDA: "Courts are undermining antidiscrimination legislation"
A lesbian employee complains against discrimination by a colleague and addresses the Chamber of Labour. The shop committee feels outraged and takes the matter to the company’s supervisory board. This board instructs the executive directors to take action. The directors then pressure the woman to sign consensual termination of contract, otherwise she would be dismissed. She submits and leaves the company. The Austrian Supreme Court sees no disadvantageous treatment and declares lawful the company’s actions …
The EU-Antidiscrimination-Directive (2000/78/EC) and the Austrian Equal Treatment Act prohibit discrimination in the workplace inter alia on the ground of sexual orientation. And they prohibit also any adverse treatment in reaction to a complaint against discrimination ("victimisation"). Without such protection against victimization there would be no effective protection against discrimination. So the Equal Treatment Act obliges victimizers to pay compensation to the victim.
If executive directors ask an employee to agree to termination of contract such employees usually feel threatened in their job security. Even more so if the driving force behind this pressure turns out to be the shop committee (which should protect the interests of the employee) what produces feelings of particular isolation. And it really gets excessive when the matter is even taken into the supervisory board of the company, gets subjected to outraged discussion there leading to instructions to the directors to take action. Such an order of events usually causes considerable feelings of distress, total isolation and helplessness in almost any employee so affected.
Interest in changing the job deprives of protection?
One could hardly imagine adverse treatment, in reaction to a complaint, worse than this one. Even more so, when the employee gets threatened with dismissal if she won’t agree to termination. Termination of contract as the unconditioned sanction for a complaint against discrimination: a classic case of victimisation.
Not so however for the Austrian courts. The Supreme Court has confirmed the judgments by the Regional Court for Civil Affairs of Graz and by the Upper Regional Court of Graz (as appeals court), which dismissed the claim for compensation. The high court judges said that they could not see disadvantageous treatment as the woman, more than two months (!) before the events, had considered to change to another company. Therefore the "consensual" termination of contract could not be considered as other-directed but should be seen as self-determined (OGH 25.10.2011, 9 ObA 113/11z). The Supreme Court judges also sanctioned the reasoning the Upper Regional Court of Graz had provided (26.05.2011, 7 Ra 13/11b), that the voluntary payment of one month salary in addition to the obligatory termination payments would count against non-self-determined termination of contract in this case.
Money makes self-determination?
None of the three courts ever has established that the woman wanted to leave her job at the time she had been pressured into "consensual" termination of contract. When an employee considers changing the job does that mean that she wants to go for sure? And does it say when she would like to do so? And can voluntary (additional) termination payment render a
termination of contract self-determined any more than a later payment could render (sexual) harassment consensual?
Even one of the company’s executive directors saw the issue of self-determination different than the courts: "I am fully aware", he testified in court, "that this always is disagreeable for a person so affected".
From the first day in court the presiding judge at the court of first instance has asked the woman if she would not like to withdraw her case. Even if she would get compensation, money could not make good for the things happened …
„This case is a textbook example of how to undermine a good law", says the president of Rechtskomitee LAMBDA (RKL) and counsel of the victim, Dr. Helmut Graupner, "The best statutes on the books are futile, if they are not enforced effectively in everyday life of the courts".
More information: Rechtskomitee LAMBDA, (+43 1 876 30 61, +43 676 309 47 37), office@RKLambda.at; www.RKLambda.at
[LAMBDA Report in English]
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ASD The Consumer Electronics Show is taking place in Las Vegas this week and, as usual, vendors are showing off televisions made from Organic Light Emitting Diodes.
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“The most exciting TVs at the show from both a design and picture quality standpoint are the two 55-inch OLED TVs announced by LG and Samsung,” David Katzmaier, who oversees TV coverage for CNET, tells me. “Their prices will be astronomical by LCD and plasma standards, but their images are clearly better and they can be as thin as five millimeters. They seem like disembodied images in person.”
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But, yes, OLED TVs have taken their time. I saw my first OLED TV back in 2007 in Japan. Since then, a grand total of two OLED TVs have hit the market: an 11-inch one from Sony that cost more than $2,000 and a 15-incher from LG that cost around $2,700. So that’s a few thousand dollars for TVs with screens smaller than most notebook displays. The same goes for LED lights: the trade show demos far outnumber the actual products.
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The 55-inch TVs underscore the steady progress on the tool sets required to produce large OLEDs. A good portion of this work is being performed in-house, but third parties have also come up with tool ideas. A start-up called Kateeva (read first story ever on them here) is working on a tool that creates large OLEDs with something akin to ink jet printer nozzles.
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I asked a number of companies—Panasonic, Toshiba, Hitachi—at CES in 2008 when we might start seeing OLED TVs priced for the mainstream. 2015 nearly all of them said. So the industry has three years to whack the price of the $8,000 TVs coming out in the second half. Three years: that’s nearly two cycles of Moore’s Law. Going by the usual rules of thumb, that means manufacturers might be able to pop out $2,000 55-inch OLED TVs for the 2015 holidays. Crazier things have happened.
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OLEDs have the potential to be 100 percent efficient, say researchers at USC and other universities. While the industry isn’t there yet, the headroom gives OLED the opportunity to beat LED LCDs in lumens/images per watt and will help the industry meet any energy efficiency regulations. Car makers want electric cars to increase their fleet mileage. OLEDs will do the same for the consumer electronics industry.
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OLEDs can also be fashioned into lights. You can transform entire walls, and even windows, into light fixtures. You may not buy them for your home right away, but the W Hotel and other hipster establishments will to create architectural showpieces. The existence of other markets will increase the investment in tool sets and manufacturing. (Regulations will also help drive the OLED lighting market.)
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Conversely, TVs have also been a springboard for new types of lighting. Luxim, which makes plasma bulbs for streetlights and public spaces, started as a supplier for the projection TV industry and TV manufacturers remain one of the most ardent purchasers of red, green and blue LEDs.
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So how can vendors beef up margins and stave off second-tier vendors in an LCD price war? Make TVs from a new material that companies that depend on contract manufacturers can’t exploit yet! Somewhere, a guy from McKinsey charged $185,000 for the same piece of advice.
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TV formats often fail. Plasma and rear-projection swooned to LEDs, even though both could tout benefits and even better image quality. Back in the early 2000s, Samsung looked at carbon nanotube TVs. Toshiba also had nano sets that died before coming to market. These efforts ultimately died because they were isolated efforts. The idea was good—the industry teamwork was not.