Sexual harassment payouts see victims win big
Sexual harassment payouts have increased dramatically in recent years. Not only are victims receiving higher payouts than ever, but employers are being forced to pay damages even if the sexual harassment isn’t proven in court. The courts and the various tribunals are sick and tired of employers and individuals behaviour. Both in the substance of the sexual harassment complaint and the appalling manner in which employers manage and handle the complaints. Increased sexual harassment payouts is a mechanism to bring employers more into line and to start talking sexual harassment complaints, training, and sex discrimination rights more seriously.
Many of these out-of-court payouts are awarded to victims because their employer mishandled their sexual harassment complaint. This isn’t an uncommon phenomenon. Even at the highest levels of the Australian government, as in the case of former Liberal party staffer Brittany Higgins, there was a failure to properly respond to and investigate to a sexual harassment complaint.
Employers are suffering the consequences of mishandling sexual harassment complaints
When you make a sexual harassment complaint, the onus is on your employer to properly respond and conduct an investigation. Employers are legally beholden to do so, and if they don’t, they can face severe consequences. This has been no more illustrated than by the much-publicized case of Brittany Higgins. The out-of-court settlement that Ms Higgins has recently been awarded underlines just how severe the consequences of mishandling sexual harassment complaints can be for employers.
In December, Ms Higgins was awarded a multi-million dollar payout from the Commonwealth. This was despite her criminal case against alleged perpetrator Bruce Lehrmann being dropped by the Australian Capital Territory Director of Public Prosecutions. As was much publicized in the press, the Morrison Government had failed to properly respond to and investigate Ms Higgins’ sexual harassment complaint. She had made several attempts to raise her complaint with top Liberal party members, only to have them brushed off.
Brittany Higgins awarded over $2.5 million for mishandling of sexual harassment complaint
In March last year, Ms Higgins entered into negotiations with the Commonwealth after she made a claim with Comcover – the federal government’s self-managed insurance fund. Ms Higgins had made a claim for sexual harassment, sex discrimination, disability discrimination, negligence, and victimisation. The payout awarded to Ms Higgins is believed to be $2.5 million, based on the amount cited in her original claim. This included compensation for future and past economic loss and general damages for future assistance with at-home care. The claim also included an additional $150,000 for future out-of-pocket expenses.
The payout was made based on the Morrison Government’s mishandling of Ms Higgins’ sexual harassment complaint. It didn’t take into account any criminal finding in relation to the complaint. That is, it didn’t matter that her alleged sexual harassment wasn’t proven in court.
Female lawyers awarded payout for sexual harassment by Supreme Court judge
In December, another high-profile case that saw an employer mishandle a sexual harassment complaint hit the headlines. It involved two female lawyers who were awarded a “multi-million dollar” sexual harassment payout after being sexually harassed by Victorian Supreme Court judge Peter Vickery. The lawyers were both in their early 20’s at the time that they were sexually harassed by Mr Vickery, who was in his 60’s. Mr Vickery, who died in April last year, had presented sexualized poetry to the two lawyers and had made unwelcome sexual advances.
He had also placed his hand between the thighs of one of the lawyers. And in a separate incident, Mr Vickery kissed her on the lips. The sexual harassment has had a profound affect on the two women, with one no longer working as a lawyer. The women had complained about the sexual harassment to Maurice Blackburn in 2020, who in turn requested that the Victorian Supreme Court investigate the matter. However according to the firm, the Supreme Court had failed to “properly investigate and respond to the first case of sexual harassment at that time.” This therefore “increased the risk of recidivism by the judge.”
The two women were awarded the payout after engaging in a mediation with the State of Victoria. The payout was made without the alleged sexual harassment being proven in court.
Sexual harassment payouts have increased significantly in recent years
The huge payouts awarded to the victims in the aforementioned cases is part of a recent trend of higher payouts since the landmark sexual harassment case Richardson v Oracle Corporation Australia Pty Ltd in 2014. Prior to this case, a court would generally award approximately $12,000 to $20,000 in compensation to victims for non-economic loss.
The case involved Rebecca Richardson, an employee of global tech giant Oracle, who had made complaints of sexual harassment by a senior manager, Randol Tucker. After suffering “a constant barrage of sexual harassment,” in 2013 Ms Richardson sued Oracle and Tucker for sexual harassment under the Sex Discrimination Act 1984 (Cth). Her Federal Court suit also cited indirect discrimination and victimisation.
The Court found that Mr Tucker had sexually harassed Ms Richardson. But it also found that Oracle had failed to properly respond and investigate her sexual harassment complaint and was therefore vicariously liable. This included because “Oracle’s Human Resources staff mishandled the investigation.” And that Ms Richardson had been “forced to keep working with Mr Tucker during the investigation.”
Ms Richardson receives landmark sexual harassment payout
Ms Richardson had sought around $450,000 in damages, which was described by the Court as “very optimistic.” She was ultimately awarded just $18,000, which was hardly comforting considering her legal costs exceeded $250,000. Also, Ms Richardson was ordered to pay Oracle’s legal costs since the Court had found that she had dismissed several settlement offers, including one which amounted to $85,000. However, Ms Richardson later appealed the decision with the Full Court of the Federal Court and was awarded $130,000 in damages. This included compensation for the loss of enjoyment of life and the distress caused by the sexual harassment, as well as loss of income.
In its decision, the Full Court acknowledged that community standards around sexual harassment had changed.
“While the sum of $18,000 was not out of step with past awards in cases of this kind, this amount was nonetheless manifestly inadequate,” “It was out of step with the general standards prevailing in the community regarding the monetary value of the loss and damage of the kind Ms Richardson sustained.”
Full Federal Court
Sexual harassment payouts have increased further since 2014
Following the landmark payout in Richardson v Oracle Corporation Australia Pty Ltd, sexual harassment payouts have increased even further. In the case Collins v Smith (Human Rights) [2015], Amanda Collins was awarded $332,000 in damages by the Victorian Civil and Administrative Tribunal. Ms Collins had suffered repeated sexual harassment by David Smith, at whose post-office she worked at.
Mr Smith’s conduct included touching Ms Collins’ buttocks and breasts, attempting to kiss her, and sexually propositioning her. He had also sent Ms Collins sexually explicit texts and phone messages. The sexual harassment had forced her to resign. The Victorian Civil and Administrative Tribunal (VCAT) ruled that Mr Smith’s sexual harassment had breached the Equal Opportunity Act 2010 (Vic). The huge sexual harassment payout included compensation for hurt, humiliation and distress, as well as aggravated damages. It also included compensation for past and future loss of earnings as well as out-of-pocket expenses.
Highest ever Federal Court sexual harassment payout in 2019
In the case Hill v Hughes [2019], paralegal Katherine Hill was awarded $170,000 in damages by the Federal Court. This was the highest ever sexual harassment payout made under the Sex Discrimination Act 1984 (Cth). And it contained the highest ever amount of aggravated damages awarded at $50,000.Ms Hill had been sexually harassed by Owen Hughes, the principal of the law firm she was employed by. The harassment included coerced hugs, emails containing unsolicited romantic propositions, and entering her hotel room while she wore a towel. Mr Hughes had made threats to dismiss Ms Hill if she didn’t accept his advances.
“It is a mark of a bygone era where women, by their mere presence, were responsible for the reprehensible behaviour of men,” said Judge Vasta. “The Sex Discrimination Act was enacted to help eliminate this sort of thinking.” Mr Hughes appealed the decision, arguing that his actions weren’t sexual harassment, but were rather attempts at romance. However, the Full Court of the Federal Court dismissed his argument as “delusional.”
Conclusion to: Sexual harassment payouts see victims win big
If you have been victim of workplace sexual harassment, we at A Whole New Approach can help. We are Australia’s leading workplace mediators, with over two decades’ experience helping victims of sexual harassment. We are considered one of the nations leading advisors and commentators. We are proud of our staff and the outcomes they get for our clients Our friendly team can provide all you need to know about making a sexual harassment complaint. And we can explain the obligations of your employer to properly respond to and investigate your complaint. If your forced to resign, subjected to adverse action because of your complaints or just want to talk about the toxic workplace culture your in, call us.
Call us today on 1800 333 666 for a free and confidential discussion about your circumstances.
