Ignore Sexual Harassment at your Peril
As an employer you can, and will be, held liable for sexual harassment committed by one of your employees, unless you have taken all reasonable steps to prevent sexual harassment from occurring at work.
The risks to employers who fail to take all reasonable steps to prevent sexual harassment have been highlighted by the recent case of Richardson v Oracle Corporation Australia Pty Ltd, which represents a new benchmark for compensation orders in sexual harassment cases.
The Federal Court originally awarded Ms Richardson $18,000 in compensation for sexual harassment she suffered during her employment with Oracle. However, the amount was increased to $130,000 when Ms Richardson successfully appealed to the full Federal Court. The $130,000 in compensation consisted of:
- $100,000 in compensation for the sexual harassment; and
- $30,000 in lost earnings.
In upholding the appeal, the court noted that community standards now accord a higher value for pain, suffering and loss of enjoyment of life and that previous judgments have been manifestly inadequate and out of step with general community standards.
Ms Richardson’s claim was based on a number of incidents, involving sexual comments and advances made by Mr Tucker, another of Oracle’s employees, including:
Public comments made during meetings, such as:
“Gosh, Rebecca (Ms Richardson), you and I fight so much… I think we must have been married in our last life”;
“So, Rebecca, how do you think our marriage was? I bet the sex was hot”; and
“You know, Rebecca and I have this really hot love/hate thing going on”;
Private advances and comments, such as:
“we should go away for a dirty weekend sometime”;
“I love your legs in that skirt. I’m going to be thinking about them wrapped around me all day long”; and
“I love it when you’re mean to me. It just makes me think of how hot you would be in bed”.
Other than rebuffing Mr Tucker, Ms Richardson did not complain to her employer and did not lodge a formal complaint to the Human Rights Commissioner until after the eleventh incident. While her complaint was being investigated by her employer, Ms Richardson was still required to work with Mr Tucker.
Oracle’s investigation found that Mr Tucker had engaged in inappropriate behaviour and he was given a first and final warning and issued an apology to Ms Richardson, who subsequently left to take a position with another company at a lower rate of pay.
Although Oracle had policies and training in place to prevent sexual harassment, they were not customised for the particular work environment and did not contain all the necessary elements set out in the applicable code of practice. As a result, Oracle was liable for the actions of its employee, as it had not taken all reasonable steps to prevent the sexual harassment suffered by Ms Richardson.
Prepared by Michael Gibson and Matt Bell.