What can I do if I am sexually harassed at work?

Being on the receiving end of sexual harassment can be incredibly distressing, and no profession is immune. In the legal industry, more than one in three lawyers has experienced sexual harassment during their careers. Sexual harassment is a gendered issue, where perpetrators of sexual harassment are often male, undertaking a pattern of behaviour, usually towards women in a more junior position.

Instances of sexual harassment can give rise to multiple claims under both Commonwealth legislation and State legislation for sexual harassment and sex discrimination. Sexual Harassment occurs when a person engages in unwelcome conduct of a sexual nature in circumstances which a reasonable person would have anticipated the possibility that the person being harassed would be offended, humiliated or intimidated.

The same conduct can also give rise to a claim for Sex Discrimination on the basis that a person has treated someone less favourably than they would treat someone else of a different sex in the same circumstances.

In Victoria, employers have a positive duty to eliminate sexual harassment from the workplace. The Victorian Equal Opportunity and Human Rights Commission have released a guide for employers which includes six standards for employers to comply with their positive duty to eliminate sexual harassment:

• Employers should understand their obligations under the Equal Opportunity Act and have up-to-date knowledge about workplace sexual harassment;
• Employers should develop and implement an effective sexual harassment plan;
• Leaders in the workplace should drive organisational culture;
• Employers build a culture of safety and address risks regularly;
• Employers should address concerns should be done consistently and confidentiality to hold harassers to account and ensure that responses are victim-centred; and
• Employers should regularly review, evaluate and improve strategies and outcomes.

However, not every employer is aware of their positive duty, and sexual harassment is still a common occurrence. In a recent case, Hill v Hughes [2019] FCCA 1267, Judge Vasta awarded $170,000 in damages, including $50,000 worth of aggravated damages, to a lawyer who had been sexually harassed by Mr Hughes, her employer. Mr Hughes had sent a multitude of inappropriate emails to Ms Hill and had insisted on multiple occasions that Ms Hill hug him. Mr Hughes attempted to argue that Ms Hill had encouraged his behaviour by the clothes that she wore and her perfume, describing it as “flirty and coquettish”. Judge Vasta dismissed this argument finding that “it is the mark of a bygone era where women, by their mere presence, were responsible for the reprehensible behaviour of men”, which the Sex Discrimination Act 1984 (Cth) was enacted to help eliminate. 

For legal advice, including a legal strategy about pursuing a claim, you should contact an employment law expert.