A string of high-profile sexual harassment cases — led by Kristy Fraser-Kirk’s $37.4 million claim against David Jones — are playing out in Australia as governments consider potentially radical changes to workplace sexual harassment regulation in Australia.
Of the many proposals, the most dramatic is to give the Sex Discrimination Commissioner workplace-safety like powers to investigate and enforce. Another is to create new reporting and auditing obligations for all businesses to show the Commission they are taking steps to prevent sexual harassment.
“What we are seeing is that sexual harassment is often systemic, so we need a more systemic response,” Sex Discrimination Commissioner Elizabeth Broderick told Crikey. “If we had research, for example, which indicated there was a particular problem sector then we would go about self-initiating an investigation.”
Under current provisions, an individual may complain to the Sex Discrimination Commission, although the latter has no power to assist either party if the matter goes to court. Furthermore, the onus is entirely on the individual complainant to initiate action in either the Federal Court.
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Broderick says the distinguishing feature of recent high profile cases is they have initiated by well-resourced women. As it stands, she says the current complaints-based system is often inadequate in addressing the concerns of the majority of sexual harassment victims.
A bill amending the Sex Discrimination Act is currently before parliament. Although, these amendments do not include changes to the role of the Commission, it will nonetheless alter the legal test to make it easier for sexual harassment complainants to prove their case at trial. The amendments follow a report by the Senate Standing Committee on Legal and Constitutional Affairs into the effectiveness of the Sex Discrimination Act in 2008. Only seven of the 43 recommendations were accepted, of those “noted” included the ideas to expand the powers of the commission and change reporting and auditing requirements across all areas of gender equality.
Broderick says she thinks there is a moderately strong possibility the Commission may be granted new powers under the Gillard government’s proposed consolidation of state discrimination laws or even under a harmonised Occupational Health and Safety Act.
The Liberals have been outspoken in their opposition, producing a dissenting Senate report describing the changes as an unnecessary costly and onerous burden on industry. The Australian Chamber of Commerce and Industry supports the dissenting report, pointing out the business world is already “concerned” about s-xual harassment and that many regulation and reporting requirements already exist.
ACCI suggests the idea to give more powers to the commission conflates sexual harassment with workplace safety. Certainly, many well-meaning employers have been slugged with high penalties in court for unfair dismissal after sacking an employee for sexually harassing a co-worker.
Employers can already negate vicarious liability if they are able to show the court they took ‘reasonable steps’ to stop s-xual harassment occurring the workplace. Human Rights and Equal Opportunity Commission guidelines suggest this should at least entail a sexual harassment policy with clear remedial measures communicated to all staff. Iin reality there have only been two cases where this has been successfully used as a defence.
The Fraser-Kirk case side, sexual harassment damages are almost invariably low. Figures from the Human Rights and Equal Opportunity Commission indicate the average claim is around the $22,000 mark. Very few cases involve payouts of more than $50,000; many more involve payouts of less than $5000. While complainants usually leave their job, there is no legal aid funding available for victims of sexual harassment. Those who lose are often requirement to pay the winning side’s legal costs.
With such low damages, it is clear why Fraser-Kirk’s legal team have also made a claim under the Trade Practices Act — a move which would create a major legal precedent and, in turn, concern for the business sector.
Small business is likely to feel the greatest impact. They account for the majority of s-xual harassment complaints which end up in court, often because smaller employers don’t have the resources to resolve situations internally. But Broderick says proposed new reporting requirements would simply result in better targeted and outcome-based, rather than necessarily ‘extra’ obligations on businesses.