National inquiry into sexual harassment

The national inquiry into sexual harassment will be overseen by Sex Discrimination Commission, Kate Jenkins, and the Australian Human Rights Commission (ARHC). It will involve a nation-wide consultation across industries and extensive research into the scale of sexual harassment in the workplace, the adequacy of the existing legal framework and its projected costs to businesses.

 

Summary


  • On 20 June 2018 the Sex Discrimination Commissioner Kate Jenkins announced a national inquiry into sexual harassment in Australian workplaces.
  • It will cost an estimated $900,000 and take place over a period of 12-months.
  • Nation-wide surveys are expected to commence in August 2018.
  • The ARHC is also planning to release its fourth national survey into workplace sexual harassment in August 2018.  The last survey conducted in 2012 revealed that 1 in 4 women and 1 in 6 men reported they had been sexually harassed in the workplace in the past 5 years.

What is sexual harassment 


  • Under Australian law, a person is sexually harassed if he or she is subjected to unsolicited and unwelcome sexual conduct that causes them to feel offended, humiliated or intimidated. This is codified in Part 2, Division 3 of the Sex Discrimination Act 1984 (Cth).

Case example: Richardson v Oracle Corporation Australia and Tucker


  • In the 2014 case of Richardson v Oracle Corporation Australia and Tucker the plaintiff brought a claim against Mr Tucker and her employer, Oracle, for sexual harassment perpetrated by Mr Tucker over a period of 6 months.
  • The offending conduct included comments such as “I’ll be thinking about your legs wrapped around me all day” and “Gosh, Rebecca, you and I fight so much, I think we must have been married in our last life.”
  • Despite the plaintiff reporting the conduct to HR, who carried out an investigation, the plaintiff was required to continue to work in proximity to Mr Tucker before she subsequently resigned.
  • At first instance, the Federal Court awarded the plaintiff $18,000 in damages for non-economic loss only.  However, on appeal, the Full Federal Court determined the award of damages was “manifestly inadequate” and “did not reflect the community expectations”.  The Court increased the award of damage for non-economic loss to $100,000 and awarded her damages for economic loss in the sum of $30,000.
  • In her separate judgment, Justice Kenny acknowledged there was now a “deeper appreciation of the experience of hurt and humiliation that victims of sexual harassment experience and the value of loss of enjoyment of life occasioned by mental illness or distress caused by such conduct”.

Cases decided since Oracle


  • A cleaner at a school was sexually harassed when two of his co-workers set up a prank to make him believe two staff members had used a staff room for a sexual romp.  The Queensland Civil and Administrative Tribunal awarded him $156,051, comprised of non-economic loss ($70,000), out of pocket expenses and economic loss: Green v State of Queensland [2017] QCAT 008.
  • A female employee at a Post Office was sexually harassed by her boss who made repeated sexual advances towards her over a three-month period, including attempts to kiss and embrace her, touch her inappropriately, send her incessant text and phone messages and demand sexual favours in return for benefits at work. The Victorian Civil and Administrative Tribunal awarded her $332,280, comprised of non-economic loss ($180,000), out of pocket expenses and economic loss: Collins v Smith [2015] VCAT 1992.
  • A young male hairdresser was sexually harassed by senior males at a salon who made comments to him over a three-month period, including “hairdressers are like racehorses, they need a pat on the bum to go faster”.  The NSW Civil and Administrative Tribunal awarded him $30,000, comprised of $10,000 for harassment, $5,000 for non-economic loss and $15,000 for victimisation: Kordas v Ruba & Jo Pty Ltd v/a Aztec Hair & Beauty [2017] NSWCATAC 156.

Implications


  • There is now increased publicity around sexual harassment claims made by men and women. The stigma that used to be attached to reporting instances of sexual harassment has declined.
  • Prominent public icons and victims of sexual harassment are becoming more politically involved and mobilising their efforts to raise awareness and offer assistance to victims.
  • The ARHC already estimates that 20% of people over 15 years of age have been sexually harassed, with 68% of those being harassed in the workplace. This is already a high number and it is pegged to increase simply based upon the willingness of people to report instances of sexual harassment.
  • The increase in new technologies, including mobile phones, email and social networking websites are just some of the new spaces where sexual harassment can occur, making it both a complex and opaque risk for insurers.

What might change?


  • Abolishment of time limits for people making sexual harassment complaints to the ARHC.
  • Imposing a positive obligation on employers to take reasonable steps to prevent sexual harassment of or by their employees.
  • Creating an obligation on companies to report externally on sexual harassment complaints or claims.
  • Creating criminal penalties for perpetrators of sexual harassment.

When will the changes come into place?


  • Recommendations will be made by Ms Jenkins in 12 months’ time.
  • Any suggested changes will be reviewed in 3 years after they come into effect.

Considerations for insurers


  • Litigated sexual harassment claims are more likely to be tried at common law given the restrictions imposed on workers compensation claims.
  • Claims involving psychological injury/harassment are notoriously difficult to quantify and are often productive of comparatively high awards of damages, so how can we get ahead of the eight ball?
  • Preventative action is complicated by considerations of privacy laws and individual rights.  What preventative measures can and should an employer take?
  • What is an employer’s duty of care for the conduct of and investigation into allegations of sexual harassment?  Is there are risk that that such investigations could be productive of defamation claims or psychological injury to the accused?

Key issues


  • Knowing your client: understanding the scope of the insured’s duty of care.
  • Identifying the harm: distinguishing between criminal conduct and a civil wrong.
  • Educating your client: consider updating workplace policies that extends to harassing conducted by internet, email and social media and committing to a process of continuing education on sexual harassment in the workplace.
  • There is an opportunity to build public branding here also. Consider how you might be a leader in the promotion of healthy workplaces.

Contributors

Stuart Windybank Principal