Sexual Harassment
· Not limited to women complaining about men: Aldridge v Booth.
ELEMENT 1: State the Elements of Sexual Harassment
1) Unwelcome;
2) Conduct of a sexual nature;
3) In circumstances where a reasonable person would have anticipated that the other person would be humiliated, intimidated or offended;
4) In an area which the legislation covers.
ELEMENT 2: Define Sexual Harassment
s 119 ADA (Qld):
· Unsolicited request for physical intimacy or sexual favors;
· Remark with sexual connotations relating to the other person;
· Any other unwelcome conduct of a sexual nature.
s 28A SDA:
· Unwelcome sexual advance or request for sexual favors;
· Other unwelcome conduct of a sexual nature:
§ Includes statements of a sexual nature to a person, or in the presence of a person, whether made orally or in writing: s28A(2) SDA.
· Djokic v Sinclair:
§ Pinging a ladies bra, propositions, gestures, indecent exposure, stalking, endless propositions of marriage, obscene calendars.
· Bone v Powling & Anor:
§ Offer of money for homosexual sex.
· Lallard v Tweed Art Framing Co:
§ Man stole nude photos of the complainant, enlarged them and carried them around in his brief case.
· Aldridge v Booth:
§ 19yo girl worked at a cake shop.
§ Owner repeatedly touched her ass, breasts, kissed her and asked for sex.
§ He threatened to fire her if she didn’t comply, saying ‘how would you like a holiday on the government’.
· Hall v Sheiban:
§ Doctor sexually harassed separate girls who were applying for a reception job.
§ 3 girls got together and complained.
§ Held: It doesn’t matter how absurd it sounds, if it is of a sexual nature and unwelcome, it is sexual harassment
ELEMENT 3: State Examples of What is Not Sexual Harassment
· Examples where no sexual harassment was found.
· Hoseman v Crea’s Glenara Motel:
§ Woman was called a stupid bitch and a fat ass.
§ Failed to prove sexual harassment, because there was nothing sexual in that abuse.
· Watson v NSW BHP Steel:
§ A patronizing attitude towards women or an insensitivity to menstrual problems is not sexual harassment.
· Malone v Pike:
§ A respondent who stood across doorways and stood close to the complainant, and poked at her chest with her finger, was not guilty of sexual harassment.
· Hardy v Kelly: Pre-existing relationship (Friends)
§ A married boss was in love with his secretary, with whom he was friends outside of work.
§ She got sick of his positive comments and complained of sexual harassment.
§ Held: In the context of a pre-existing relationship, it is hard to prove that the sexual nature of any comments is unwelcome.
ELEMENT 4: State the Area
· ADA: No specified area of coverage, could be anywhere.
· s28B SDA: Limited to areas of pre-employment, employment and dismissal:
a) Employee;
b) Person seeking work;
c) Fellow employees;
d) Commission agent;
e) Contract worker;
f) Partner in partnerships;
g) Workplace participant, eg. conference.
· Under the SDA, there must be a connection with work.
· Q v John Defelice:
§ A woman who worked in a hotel injured her back.
§ The new manager gave her a business card and said that he was a trained masseuse and that he could help her rehabilitate.
§ He went to her house and gave her a free massage.
§ She thought that her employer was providing it.
§ He felt her up during the massage.
§ He argued that it took place outside of the workplace.
§ Held: The business card and the fact that he was her supervisor, etc. meant that there was a connection between the harassment and work.
· If a complaint is dismissed, resubmit it under:
§ s170CK(2)(f) Workplace Relations Act 1996 (Cth); or
§ s73(m) Industrial Relations Act 1999 (Qld).
· s28C SDA: Conferring, etc. occupational qualification.
· s28D SDA: Membership of unions (registered organizations defined in s4(1) SDA).
· s28E SDA: Employment agencies.
· Elliot v Nanda:
§ 17yo girl referred by CES for a position as a receptionist for a doctor.
§ CES had an 8 year file of complaints about the doctor sexually harassing young female employees.
§ CES policy was to just not send any employees from time to time.
§ CES claimed to be afraid of defamation if the accused him.
§ The 17yo worked for the doctor for six months, resigned, and went back to the CES and told them why.
§ The CES had never encouraged anyone to make a complaint and had never warned anyone.
§ She made a complaint against both the doctor and the CES.
§ The doctor didn’t turn up to the conciliation and kept trying to delay proceedings.
§ Held: Sexual harassment, awarded $15000 plus money for counseling.
§ Doctor refused to pay.
§ She had to launch another action in the Federal Court to get the money.
§ Held: CES liable under s105 SDA for permitting a contravention of the Act.
§ CES and doctor jointly liable.
· s28G SDA: Provision of goods and services.
· s28H SDA: Provision of accommodation.
· s28J SDA: Disposition and acquisition of land.
· s28K SDA: Management committees of clubs.
· s28L SDA: Exercise of powers by Cth in Cth laws and programs
· Caboolture SC:
§ Caboolture SC exercised the powers of the Commonwealth by putting unemployed people to work as part of the Commonwealth funded work for the dole scheme.
§ A supervisor sexually harassed an unemployed female.
ELEMENT 5: Discuss the Element of Possible Humiliation
· s119 ADA: Either an intention to offend, etc. or a reasonable person having regard to all of the circumstances would have anticipated the possibility of another person being offended, humiliated or intimidated.
· s28A SDA: Only the second part, a reasonable person having regard to all of the circumstances would have anticipated the possibility of another person being offended, humiliated or intimidated.
· This is based on the reasonable harasser, is it reasonable to assume that a harasser would have anticipated that the person would feel offended, humiliated or intimidated.
· s120 ADA: The circumstances of the complainant must be considered when assessing whether it would be reasonable to assume that a harasser would have anticipated that the person would feel offended, humiliated or intimidated.
· Hambleton v Gabriel the Professional:
§ The circumstances of the complainant can include vulnerability in the job market.
§ A woman saw an ad in the paper asking for secretary and sales applicants.
§ She rang the number, however, the employer seemed more interested in her private life.
§ She arranged to meet him in the foyer of where he was staying.
§ He left a message at the foyer that he was on the phone, so she should come up to the apartment.
§ He talked about how lonely he was, and started touching her.
§ She tried to leave, but he grabbed her.
§ She struggled and escaped.
§ She then made a complaint.
§ He appoligised and said that it was a misunderstanding.
§ Held: There was no genuine business, he was just trying to lure women.
§ When assessing whether it is reasonable to assume that a person will be offended, vulnerability in the job market can be taken into account.
· Horne v Press Clough Joint Venture:
§ Two female cleaners on a construction site cleaned the brew rooms.
§ There were girlie posters on the walls.
§ They were prepared to tolerate it.
§ However, one day, there was an explicit poster, which the cleaners complained about.
§ After that, the posters became more and more explicit.
§ There would be notes on the posters saying ‘if you don’t like it, leave’.
§ The cleaners went to the union to complain, but they saw the same posters at the union office.
§ The union and the employer said that if they were to order the employees to take down the posters, there would be a strike.
§ Held: A working environment where women are degraded is detrimental to their right to quiet enjoyment of their workplace.
§ Both union and employer liable.
· Shepherd v Tuck and Tuki Marine Surveys:
§ A girl’s boss sacked her because she failed to carry out work tasks.
§ She alleged sexual harassment.
§ It was a rough workplace, sexual innuendo everywhere.
§ She had a flirtatious relationship with her boss, she shared accommodation with him when they went away.
§ Held: She like the workplace, except for when she was asked to do thing that she didn’t like.
§ Although the conduct was of a sexual nature, it was not unwelcome, and there was no humiliation or intimidation.
ELEMENT 6: Remedies
State:
· s209(1)(a)&(e) ADA (Qld): Private or public appoligies.
· s209(1)(f) ADA (Qld): Respondent to implement programs to eliminate unlawful discrimination.
· s209(1)(g) ADA (Qld): Party to pay interest on compensation amount.
Federal:
· S46PO(4) HREOC court orders include:
a) Declaration;
b) Redress any loss or damage suffered;
c) Employ or re-employ;
d) Compensatory damages;
e) S46PO(6) interim injunction pending proceedings.
· If rejected, you can apply to the Federal Court or the Federal Magistrates Court 28 days from the issue of the HREOC notice terminating the complaint.
Principles of Assessment of Damages from Hall v Sheiban:
· Hall v Sheiban:
§ A doctor interviewed a young woman and asked when she had sex with her boyfriend last, and then felt her up.
· The public policy of legislation is to prevent harassment, etc. so damages should be more than nominal.
· Like tort, compensatory damages are what is necessary to put the person back where they would have been had the wrong not occurred.
· Remedies are meant to compensate the complaint, not punish the respondent, therefore there are no punitive or exemplary damages.
· Compensatory damages are available for lost wages, lost opportunities, hurt and humiliation.
· Aggravated damages are available where the respondent has made the suffering worse by behaving in a malicious, oppressive, insulting or high-handed way.
· Legal aid is available for discrimination cases.
· Look at the damage to that woman, not to the ‘reasonable’ woman.
· Damages are available for psychological distress.
· You ‘take your victim as you find her’: Judge v Durovic.
Complainant is Required to Mitigate:
· Try to find a new job, for example.
· McKenna v State of Victoria:
§ Female cop harassed and sexually assaulted by colleagues.
§ Blind eye turned by hierarchy.
§ $125000 awarded.
Liability:
Vicarious Liability: s133 ADA (Qld); s106 SDA (Cth).
· Employer is liable unless they have taken reasonable steps to prevent the employee or agent from contravening the Act.
· Both the harasser and the employer will be liable.
· Horne v Press Clough Joint Venture:
§ A union can be liable.
· Hill v Water Resources Commission:
§ First woman in all male work place, revolting behavior.
§ Held: Employer vicariously liable because no steps taken upon the complaint.
· Hopper v Mt Isa Mines:
§ First female apprentice in the mines.
§ Graffiti, insults, denigration of a sexual nature.
§ Held: Vicarious liability because the employer had done nothing to prepare the workers for her arrival, no training or preparation.
· Evans v Lee:
§ Woman applied to Bank for a loan, manager said he would approve it if she had sex with him.
§ Bank argued that reasonable steps had been taken, videos, brochures, training.
§ Head office hadn’t followed up on whether the resources were being used properly.
§ Held: Bank vicariously liable.
· Boyle v Ishan Ozden:
§ Couple owned a shop and left their son in charge whilst overseas.
§ Son sexually harassed an employee.
§ Held: Couple vicariously liable because they didn’t warn or train him against sexual harassment.
Liability for Permitting a Contravention:
· s105 SDA (Cth); ss 122-123 ADA (Qld).
· Elliot v Nanda:
§ Where a person requests or encourages, they will be liable.