Aug 05

3 Steps to determine whether sexual harassment has occurred

It is a truth universally acknowledged that an Appellant in want of a good argument might attempt a specious literary reference.

So was the case in the appeal decision of the Full Court of the Federal Court in Hughes trading as Beesley and Hughes Lawyers v Hill [2020] FCAFC 126 (24 July 2020).

The decision was an appeal of the trial judge’s decision to find the Appellant, Owen Hughes, principal of Beesley and Hughes Lawyers had sexually harassed his employee Catherine Hill, and to award $120 000 in damages and $50 000 punitive damages. Ms Hill was a paralegal employed by Mr Hughes in 2015. Soon after she started working with him, Mr Hughes started to declare his love for Ms Hill.

The Appellant argued that the conduct of Mr Hughes could not have been sexual harassment, because his behaviour towards his employee was romantic rather than sexual. His submission was that his conduct toward Ms Hill was not sexual harassment because he was like Mr Darcy in Jane Austen’s classic novel Pride and Prejudice. The Appellant did not seek to appeal the trial judge’s findings around the type of conduct that he had engaged in: from a number of emailed professions of love to Ms Hill, to insisting on hugs from Ms Hill before she could leave the room, to lying in wait in Ms Hill’s room in his underwear, but his argument was that this was not sexual harassment.

The Appellant’s substantive argument was that a reasonable person considering the circumstances of his behaviour would consider that his conduct fell more in the line of ‘strictly honourable’ intentions similar to Mr Darcy toward Miss Elizabeth Bennett in Pride and Prejudice. His argument was that a reasonable person would not anticipate that the Respondent would be offended, humiliated or intimidated by these intentions or his actions.

While of course not explicitly argued, in refusing to believe that his protestations of love could be seriously rejected by Ms Hill the Appellant appears to have taken the approach not of Mr Darcy, but of the repellent Mr Collins in Pride and Prejudice when he said:

“Your portion is unhappily so small that it will in all likelihood undo the effects of your loveliness and amiable qualifications. As I must therefore conclude that you are not serious in your rejection of me, I shall choose to attribute it to your wish of increasing my love by suspense, according to the usual practice of elegant females.”

Thankfully for modern workplaces and lovers of Jane Austen alike, the Appeal Court gave this argument short shrift. First it pointed out the error in the argument by the Appellant in formulating the test for whether sexual harassment occurred. Whether or not behaviour is sexual harassment is not an objective test, but a matter of fact.

Steps for determining whether Sexual Harassment has occurred

S28A of the Sex Discrimination Act 1984 provides the definition of Sexual harassment.

The Appeal Court in Hughes v Hill sets out the steps needed to be taken to determine whether a person is sexually harassed. While the court talks about what it is necessary for a Court to find to determine whether there is sexual harassment, these steps are equally useful for employers or investigators in conducting a workplace investigation into allegations of sexual harassment at work.

Step One

Was the conduct sexual in nature? An investigation will need to determine whether there was a sexual advance, a request for sexual favours or other conduct of a sexual nature. This is a matter for findings of fact made against the civil standard of the balance of probabilities.

Step Two

Was the conduct unwelcome? Determining whether the conduct is unwelcome or not is also a matter of fact which turns on the subjective fact of the target’s attitude to the conduct at the time it took place. This will usually be determined by the evidence of person who was allegedly harassed. It will not matter if the harasser, or anyone else believes that the target should welcome the conduct.

Step Three

Are the circumstances such that a reasonable person would anticipate the possibility that the target of the conduct would be offended humiliated or intimidated by the conduct? This is where the objective test comes into play, after an objective finding of fact has been made in the first two steps. In determining whether sexual harassment has occurred an employer must consider whether the ‘circumstances’ are such that a reasonable person would have anticipated the possibility that the person allegedly harassed would be offended, humiliated or intimidated by the conduct.

Circumstances are broadly defined under the Act and include any relevant circumstance including the relationship between the person harassed and the person who engaged in the conduct as well as factors such as the sex, age, sexual orientation, religious believe, and disability.

In answering this question, the reasonable person is assumed by the provision to have some knowledge of the personal qualities of the person harassed. The extent of the knowledge imputed to the reasonable person is a function of the ‘circumstances’ which the provision requires be taken into account.

In the decision before the Appeal Court some of the factors considered relevant were that the Appellant was Ms Hill’s employer, that he knew that because of shared custody of her children she was tied to a geographic area where legal jobs were rare and that the Appellant knew that she suffered from an anxiety disorder. The circumstances to be considered in each case of sexual harassment will be different.

Significant Damages for Sexual Harassment

In emphatically dismissing the Appellant’s appeal, the Full Court upheld the monetary awards of $120 000 for general damages and $50 000 for punitive damages made by the trial judge, and indicated that had it had an opportunity to revisit damages, these may have been increased. In doing so the Full Court continues the move in recent years toward substantial damages awarded to targets of sexual harassment.

Employers should take note of these damages as an expression of the seriousness with which the courts continue to treat proven cases of sexual harassment.

While understanding how to effectively investigate an allegation of sexual harassment is important, organisations need to be moving to dealing with sexual harassment in a proactive way rather than waiting for a complaint to arise. There are a number of integrated steps recommended by the Australian Human Rights Commission Report Respect@Work which include improving systems and governance as well as engaging well targeted training dealing with the context in which sexual harassment arises, and training staff to become Upstanders who know what to do when they see conduct that may be harassment.

About Jodie Fox

Jodie Fox  is passionate about helping people and organisations manage workplace conflict in a productive way. She specialises in workplace investigationsworkplace reviews and mediations to address and resolve complaints and foster a positive workplace culture. An experienced employment lawyer, she works with clients from a diverse range of industries providing pragmatic and strategic advice. She is a knowledgeable and engaging writer and speaker.

Please contact Jodie for an obligation free consultation via email or call (03) 9981 6558.

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