Sexual Harassment at Work: The Game Has Changed

Everyone has the right to feel safe at work. In Australia, there are laws which govern acceptable workplace behaviour and the ways which employers and employees  are expected to act towards each other.

With regards to sexual harassment, the parameters of acceptable behaviour are clearly defined by the Sex Discrimination Act 1984. According to the Act, sexual harassment occurs when:

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 the pos­si­bil­i­ty that the per­son harassed would be offend­ed, humil­i­at­ed or intimidated.

Whilst this law has been in place for nearly 40 years, remedies, particularly the quantum of damages, have lagged behind community expectation. A recent case has shown the willingness of the Federal Court to pay higher than usual damages in certain circumstances.

In Hugh­es v Hill [2020] FCAFC 126, general damages of $120 000 and aggravated damages of $50 000 were ordered to be paid to Ms Catherine Hill by her former employer Mr Owen Hughes after he sexually harassed her both inside and outside of the workplace for nearly 12 months.

Mr Hughes, a solicitor, employed Ms Hill as a paralegal in May of 2015, promising to train her as a solicitor. During the tenure of her employment, Mr Hughes also acted for Ms Hill in a family law matter against her former husband, obtaining confidential personal information in the process. He later attempted to use this information against her during the sexual harassment proceedings, a tactic the judge labelled ‘outrageous’.

Two months after her employment began, so did the harassment.

Mr Hughes’ harassment took many forms; incessant emails in which he professed his desire for a relationship with Ms Hill, unwanted advances in which he lay on Ms Hill’s bed uninvited on a business trip (dressed only in his underwear) and even physical incidents in which he prevented her from leaving her own office until she gave him a hug.

Ms Hill made it repeatedly clear to Mr Hughes that she was not interested in any romantic or intimate relationship with him, going so far as to confront him directly with accusations of harassment, at risk to her ongoing employment. Despite this, Mr Hughes was unrelenting, even implying that her employment and continued training would be made easier if Ms Hill were more receptive of his advances.

Ms Hill suffered greatly due to Mr Hughes’ harassment, which significantly exacerbated her pre-existing anxiety disorder and resulted in her resigning from her employment. The Federal Court of Australia found that despite Mr Hughes’ protestations that his intentions were ‘honourable’ not ‘sexual’ and that $170 000 damages were ‘manifestly excessive’, his actions did in fact constitute sexual harassment and that the damages were entirely within the range of available awards.

This case has garnered significant public attention due to Mr Hughes’ ‘despicable’ conduct (including the use of information obtained as Ms Hill’s solicitor against her in court) and his self-comparison to Mr Darcy from Pride and Prejudice. Legally it is signification because it has displayed a willingness on the part of the Federal Court to award substantial damages in cases of sexual harassment where power imbalances, here the imbalance between employer and employee, increase the level of suffering and distress felt by the victim of the harassment.

The payment of $50 000 ‘aggravated damages’, too, is significant as it displays the court’s ability to add aggravated and exemplary damages in cases where the victim’s suffering is uniquely amplified by the actions of the harasser, here the unethical divulsion of Ms Hill’s personal information and the manner in which he conducted his defence.

This case has changed the landscape of sexual harassment cases. With any legal proceedings, there is a cost-benefit analysis which must be considered by the client and the solicitor, weighing up whether the costs of proceeding with the action outweigh the potential compensation for the client. Sexual harassment cases have in the past not been viable when the risks and rewards are weighed up.

This is no longer necessarily true. If you have experienced sexual harassment, inside or outside the workplace, come in for an obligation free chat. There is nothing to lose.