Landmark sexual harassment decision
Sexual harassment is a minefield for both employees and employers. Unlike workplace bullying and harassment, workplace sexual harassment does not need to be repeated. Liability can steam from a one off incident.
In the past, victims of sexual harassment were able to sue for loss of income and also for humiliation and injury to feelings. Damages for humiliation and injury to feelings were generally limited to between $12,000 and $20,000.
The Courts in a recent decision have said that such damages do not reflect present community standards. In Richardson v Oracle Corporation Australia Pty Ltd, the employer was ordered to pay $100,000 for pain and suffering and loss of enjoyment of life to the employee who was sexually harassed in her workplace, along with a sum of $30,000 for loss of wages.
The facts of the case are as follows. Ms Richardson and Mr Tucker were both employed as sale representatives of Oracle, a technology company. They worked closely together preparing tender proposals. The conduct that Ms Richarson complained of, were various comments and sexual advances made by Mr Tucker, which included the following:
1. “Gosh, Rebecca, you and I fight so much.. I think we have been married in our last life“;
2. “So Rebecca, how do you think our marriage was? I bet the sex was hot“;
3. “Gosh, it’s a good thing you didn’t come out [to a work function after party] because I think if I were drinking with you I would wind up in the corner with my arms around you kissing you“;
4. “Oh, you know you love me, you know you want me“;
5. “We should go away for a dirty weekend sometime“;
6. “I love your legs in that skirt. I’m going to be thinking about them wrapped around me all day long“;
As a result of Mr Tucker’s ongoing conduct, Ms Richardson’s health suffered, she was diagnosed with a chronic adjustment disorder with anxiety and depression and experienced problems with her sexual relationship with her partner.
Ms Richarson complained to Oracle about Mr Tucker’s conduct and Oracle conducted an investigation. Throughout the investigation Ms Richarson continued to work with Mr Tucker. Oracle issued Mr Tucker with a first and final warning, and Mr Tucker apologised to Ms Richardson and was permitted to keep his position. Ms Richardson subsequently resigned from her position with Oracle, due to Mr Tucker’s conduct and Oracle’s handling of the investigation. She then obtained a position with another company for a lesser salary and sued Oracle successfully.
The decision is important in that the bar has been lifted significantly with respect to compensation. In the past, for many women (and occasionally men) who were the victims’ of sexual harassment, there can be a range of factors as to why they choose not to peruse a claim of sexual harassment, including limited compensation.
Although no amount of money will fully compensate an employee who has been sexually harassed, this long overdue decision signals a step in the right direction. As a result, we may see an increase in sexual harassment claims being pursued in the courts or settled through confidential agreements.
Employers will also need to take the above decision as a strong warning as to what will happen if they fail to eradicate a sexually hostile workplace or turn a blind eye to known sexual harasses. The decision is also a timely reminder to employers to ensure their workplace policies are properly implemented and enforced.
Please call Trent Petherick at Petherick Cottrell if you have any queries with respect to this article or employment law related issue.
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