#TimesUp for Sexual Harassment

It has been more than 40 years since the commencement of the Anti-Discrimination Act 1977 (NSW), 34 years since the introduction of the Sex Discrimination Act 1984 (Cth) and a very interesting two years since I published my soap box article on bullying and sexual harassment in the workplace. It seems a perfect storm has ensued.

Online campaigns like #MeToo, #TimesUp and #CelebratingWomen have provided a global megaphone for women to stand up against the sexual assault, harassment and the online denigration of women. Oprah Winfrey's phenomenal speech at the Golden Globe Awards this week sent a very loud and clear message around the world. Time is up.

In Australia, the public outcry for action and online momentum has been echoed by workplace leaders and slowly, but surely, by our courts. Time is up for sexual harassers and workplace leaders who tolerate them.

Increased available remedies

There are now more legal avenues to pursue workplace sexual harassment claims in Australia than ever before. Victims have a smorgasbord of jurisdictions and remedies available to them depending on the circumstances of the case including:

• Claims under the State or Federal Discrimination legislation for discrimination, sexual harassment and victimisation;
• Claims under the Fair Work Act (the FWA) for adverse action or unlawful termination on prohibited grounds (including sex) with remedies ranging from uncapped damages to injunctive relief, civil penalties and personal culpability for individuals "involved in" contraventions of the FWA; 
• Applications for orders by the Fair Work Commission to "stop the bullying" resulting in civil penalties if breached;
• Claims for unfair dismissal with remedies including reinstatement, back pay and compensation and potential to argue constructive dismissal where unresolved sexual harassment complaints make employment untenable causing employees to leave;
• Workers compensation claims and common law personal injury claims for failure to provide a safe work environment; and/ or 
• Prosecutions of persons conducting business or undertaking (including officers) under the Work Health and Safety legislation for failure to protect the health and safety of workers.     

Increased Damages

The Full Federal Court found in Richardson v Oracle (2014) that $12,000 to $20,000 usually awarded for general damages in sexual harassment claims was "manifestly inadequate", didn’t "reflect prevailing community expectations" and comparable damages in bullying personal injury matters. The general damages award at first instances was significantly increased from $18,000 to $100,000 in addition to $30,000 for economic loss (based on the reduced income the victim accepted in the the new job she secured very quickly). This raised the bar for cases to follow.

In Stu v JKL (2016) a young hotel worker was awarded $313,000 for suffering a post traumatic stress disorder, depressive illness, alcohol abuse and four years of unemployment after an on call contractor care worker entered her room naked and made sexual advances towards her. The unit the victim was sharing with the perpetrator had been arranged by JKL leading to JKL being vicariously liable for taking no steps to avoid the risk of the assault.

In Collins v Smith (2015) an employee was awarded $332,000 including $180,000 in general damages and $20,000 in aggravated general damage after being sexually harassed for three months by the owner/ manager of Geelong post office. The conduct included attempts to kiss her, inappropriate touching, incessant texts, phone messages, demands for sexual favours and likening her to a Lamborghini he could not drive. As a result she resigned from her job.  

Judge Jenkins in that case noted community attitudes regarding the impact of sexual harassment had changed and accepted adverse consequences can extend to loss of enjoyment of life, career, severe psychiatric illness and breakdown. Aggravated damages were awarded due to the confined working environment and the owner/ manager's persistence over a prolonged period when he was the victim's supervisor and she was clearly distressed.    

Creating Healthy and Respectful Workplaces

The increasing appreciation of the impact of sexual harassment and bullying on employee mental health and welfare at work, and the significant cost to the workplace including the cost of turnover, absenteeism, presentism and legal claims creates further impetus for employers and leaders to stop tolerating the intolerable.

Further, it is apparent the next generation of workers are not prepared to show up, shut up and turn a blind eye to keep the peace or their jobs. They are altruistic, values driven and not shy to "shun" jobs and employers that conflict with their beliefs. They are also not shy to tell everyone about it on social media.

There are now more reasons than ever to say time's up for sexual harassment in the workplace. Time is up due to the increased risks, remedies, damages, penalties and personal culpability. Time is up due the public outcry against offenders and the destructive brand damage it causes. Times is up due to staff turnover, absenteeism, lost productivity and other hard costs arising from it. Time is up because of the impact on the mental health and well being of our employees. Time is up so we can create healthy and respectful workplaces. Time is up if we have any hope of engaging future generations. Time is up because frankly, it needs to be.

This content is general commentary and opinion of the writer provided for information and interest only. It is not intended to be comprehensive, and it does not constitute and must not be relied upon as legal advice. Readers should obtain specific advice relating to their particular circumstances