Opinion
Sexual harassment in the workplace - when enough is enough
25th Sep 2014
Two recent Full Court Federal Court decisions have awarded significant damages payouts to women who endured unlawful sexual harassment at work. As Nick Toscano noted in The Age, the ‘rulings have “raised the stakes” for companies on the wrong end of workplace complaints’.
In the two recent cases, the sexual harassment the women experienced was extreme and the complaints they made were handled badly by their employers. Sadly, the factual scenarios in both cases highlight the continuing failure of some Australian employers to create workplace cultures in which employees can feel confident making sexual harassment complaints without adverse career consequences. As a result, sexual harassment may go undetected until it is too late and a valuable employee either resigns or takes legal action.
Significantly, in both decisions, the court found that the unlawful sexual harassment was a material factor behind the women’s decision to resign from their employment. Consequently, the women were awarded damages for economic loss.
The decisions also saw for the first time, proper recognition of the impacts of pain and suffering caused by sexual harassment, with both women receiving substantially increased the damages to what has been seen historically. Most previous cases typically limited damages to between $10,000 and $18,000. It is evident that this low range trivialised the suffering of sexual harassment victims, something that also now appears to have been recognised by our courts.
As a quick snapshot of these two cases shows, the lasting implications of sexual harassment are anything but trivial, particularly if the sexual harassment complaint was not handled well.
In Vargara v Ewin [2014] FCAFC 100, Mrs Ewin was sexually harassed on four occasions by a contractor working for her employer. When she reported the incident to her boss, he laughed and said that he had “[been hit by] the ugly stick and never had the pleasure of being the object of anyone’s sexual fantasy at work”. He also told her that he needed the contractor to finish a job. While eventually her complaint was taken seriously, Mrs Ewin decided that due to the emotional trauma caused by the sexual harassment and initial reaction of the employer, she could no longer continue working with the company, and resigned. She was awarded almost $500,000 to compensate for economic loss and pain and suffering.
In Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82, Ms Richardson was repeatedly sexually harassed by her colleague, in front of clients, other colleagues and in private over an eight-month period. Ms Richardson made a sexual harassment complaint. However, instead of the sexual harasser being removed from the project they worked on together, Ms Richards was the one sidelined. As a result, she resigned and took a position with a lower salary elsewhere. On appeal she was awarded $30,000 in damages for economic loss and $100,000 for pain and suffering. The large increase in damages awarded for pain and suffering in comparison to previous cases, confirms community standards now place a higher value on loss of enjoyment of life caused by sexual harassment. Significantly, the Court on appeal recognised that she had to resign as a result of the sexual harassment.
Sadly, Mrs Ewin and Ms Richardson are just two of many women sexually harassed in Australian workplaces each year. In 2012, the Australian Human Rights Commission conducted a survey which found that one in four women had experienced sexual harassment in the workplace. However, of those instances, only one in five will make a formal complaint.
This under-reporting of sexual harassment raises valid concerns that currently, women would rather quit than endure a sexual harassment complaints process in which they may find themselves labelled a troublemaker.
If a complaint is made but the matter is not handled well, a woman can feel targeted, victimised, and uncomfortable in the workplace. This concern can lead women who have been sexually harassed to feel they have no other option but to resign, as was recognised by the Court for Mrs Ewin and Ms Richardson.
Ultimately, employers have an obligation to provide employees with a safe workplace. When this is not done and the unlawful sexual harassment makes it impossible for a woman to remain at work, employers may risk finding themselves in breach of the employee’s contract of employment.
We can see from these recent cases that sexual harassment can cause as much psychological and emotional suffering as a physical injury. Now that this has finally been properly acknowledged by the courts, prudent employers should act early and fully support employees who make a sexual harassment complaint. The courts will not look favourably on employers who do not respond adequately, and women will be rightly compensated for having their careers stifled due to badly handled sexual harassment complaints.
It can only be hoped that harsher penalties in sexual harassment cases will lead to employers taking a more active approach to intervene early when employees make a sexual harassment complaint, and to ensure that person is supported and feels comfortable to remain at work while the matter is investigated.
Each new case that comes forward will help to bring about much needed improvements in workplace culture, and also changes in attitudes towards sexual harassment. That momentum is building, but employers and society as a whole must continue to work at properly eliminating sexually harassing behaviour at work. Hopefully, these two recent decisions will also help to give victims further strength to continue to stand up against harassing and demeaning conduct in the workplace, and to steer society in the direction of achieving equal and fair treatment of women in the workforce.
Giri Sivaraman is an accredited specialist in employment and industrial law and heads Maurice Blackburn’s Employment and Industrial team in Queensland. Giri regularly authors articles and submissions focused on issues of discrimination, as well as advocating for the rights of those impacted by adverse actions and unfair treatment, particularly in the workplace. He tweets @GiriDSivaraman.
Kate Luckman is a NSW based lawyer currently involved in the Unions NSW Jobs-Rights-Services Campaign. She has worked as an employment lawyer at Maurice Blackburn Lawyers, as an industrial officer two trade unions and is a volunteer lawyer at Redfern Legal Centre. She advocates for the fair and just treatment of employees in the Australian workforce.
The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).
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