The courts are leading the crackdown on workplace sexual harassment as workplaces fail to uphold expected standards of behaviour, according to experts.
On Tuesday, a record award for damages of almost $500,000 was upheld by the Federal Court, one of several large workplace sexual harassment payouts in recent years.
Jemma Ewin won her legal battle against Claudio Vergara, the co-worker who verbally harassed and had unwanted sex with her after at a work function five years ago, with the court throwing out his appeal.
Ms Ewin’s case has extended the legal protection for all employees against sexual harassment in the workplace, according to her lawyer, by broadening the definition of what constitutes a ‘workplace’.
Queensland employment lawyer Susan Moriarty says the court has chosen to recognise “what a 21st century workplace looks like” by including almost any place where works occurs, even outside the traditional office.
It is also further proof that the courts are willing to award vastly greater payouts for sexual harassment by abandoning their unofficial upper limit of $20,000 on damages for non-economic loss. (For example, Ms Ewin received $110,000 for pain and suffering).
This comes after a female manager at software company Oracle last month won a six-fold increase in her damages award from $18,000 to $130,000.
The courts say they are responding to shifting community standards, but while the community may give lip service to stricter standards of behaviour the data tells a different story – of widespread harassment, intimidation, and underreporting.
Ms Moriarty told The New Daily that the court’s very modern take on the workplace will probably be more readily accepted than its harsher penalties for harassment and assault.
“There are new community realities regarding working life. I venture to suggest that it’s probably going to be easier to bring about a consensus in the community that this is appropriate than that no woman should have been subjected to what Jemma Ewin was subjected to,” Ms Moriarty says.
The Australian Human Rights Commission’s latest sexual harassment survey, conducted in 2012, found that one in five (21 per cent) workers experienced sexual harassment in the workplace in the previous five years. Women were more likely to have been sexually harassed (33 per cent) than men (less than 9 per cent).
Queensland University of Technology’s Professor Paula McDonald, one of Australia’s leading researchers in sexual harassment, says record legal payouts, while heartening, represent only a “very, very tiny minority” of those affected by the problem.
Sadly, very few women and men sexually harassed at work will ever come forward or be so generously compensated.
“Most people do not take complaints anywhere for a range of reasons, including fear of reprisals, a fear that they will be labelled a complainer and a whinger, a fear that there will be some kind of repercussions from the alleged harasser or from the organisation more broadly,” Professor McDonald says.
These fears are well grounded, the Professor says. “The compliant handling in organisations around sexual harassment is often very poorly handled. When a complaint is made, it’s often seen as an interpersonal issue rather than a potential breach of an organisational policy or indeed the law.”
So what can be done?
Professor McDonald recommends more sensitive complaints handling procedures, and better training for employers and managers, especially lower level management.
“Sexual harassment needs to be presented in the media and the community not as a story about bad apples, but as a form of systemic disadvantage that particularly affects women, but also some men,” she says.