SEXUAL HARRASSMENT AND #METOO

16 February 2018

Millions of women all over the globe have been coming forward with their own stories of sexual harassment in the workplace following the commencement of the #metoo campaign. Whereas this issue has traditionally been underreported according to Human Rights Commission statistics, we can only anticipate that the trend of naming and shaming sexual predators at work will continue to gain traction in Australia.

What is sexual harassment?

Under the federal Sex Discrimination Act (aligned with state legislation) a person sexually harasses another person if:

  1. the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
  2. engages in other unwelcome conduct of a sexual nature in relation to the person harassed;

in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated.

In sexual harassment cases the intention of the alleged harasser is irrelevant. What is important is the reaction and effect on the person being harassed – that is, how that person feels and is impacted as a result of the behavior

Risks

Liability under harassment, discrimination and health and safety laws extends to the employer and those who were aware of the conduct in addition to the perpetrator themselves.

Possible costs and penalties include:

  • The employer and individuals may be liable to pay a complainant damages;
  • The cost of legal representation;
  • Criminal charges;
  • Low morale and poor public image;
  • Cost of workers compensation claims; and
  • Productivity and staff retention issues.

The change in social attitude is reflected in the penalties ordered by courts and tribunals – by way of comparison with the below case, the penalty for sexual harassment in 2001 was a maximum of $25,000.

Matthews v Winslow Constructions (Vic) Pty Ltd [2015] VSC 728

Kate Matthews (plaintiff) commenced work for Winslow Constructions (company) in August 2008 and was working at various sites until July 2010.

Employed as a labourer in a male dominated environment, the plaintiff alleged that she was subjected to abuse, bullying and sexual harassment by the company’s employees and subcontractors.

This included remarks such as: “did you get laid over the weekend?” “Check out her arms. She would rip my cock off” and “I had a great wank over you last night”.

She was reluctant to report the abuse to her foreman as he was responsible for some of the offensive remarks. Although she reported the abuse to her area manager, no action was taken by the company.

In responding to the plaintiff’s common law claim, the company produced surveillance evidence of her engaging in normal activities and interacting with others. However, this was unhelpful in damaging her credibility or disproving her injury.

Although she had pre-existing anxiety and possibly depression, Justice Forrest found there was no nexus between this and the serious chronic psychiatric illness that developed as a result of her employment with the company.

She was awarded $1,360,027 for common law damages, including general damages, past and future economic loss.

How can I minimise the risks associated with a sexual harassment claim?

  1. Have a clear reporting procedure in place.
  2. Ensure confidentiality.
  3. Implement effective policies and ensure you adhere to them.
  4. Invest in training for your staff on discrimination and harassment issues – including training for managers.
  5. Offer the claimant access to an Employee Assistance Program (EAP) from an early stage.
  6. Have a trusted objective party conduct the investigation into the allegations promptly.