By Keisha Wilds, Lawyer

In a recent decision of the Federal Circuit Court of Australia in Hill v Hughes [2019] FCCA 1267 (Hill), Judge Vasta awarded $170,000 in damages to the applicant for her loss and damage as a result of sexual harassment by her law firm employer.

A recent report conducted by the Women Lawyers Association of NSW found that 70% of female lawyers surveyed reported being sexually harassed. Another recent report from the International Bar Association found that 47% of women lawyers in Australia reported being harassed and bullied.

In Hill, the male lawyer, Mr Hughes was the employer of the applicant who he employed as a paralegal. She had recently been admitted as a lawyer. Mr Hughes wrote multiple emails (about which the Judge was critical of his grammar and use of the French language) to the applicant about how he wanted to have a personal relationship with her. In one of the emails Mr Hughes implied that, if the applicant did not agree to be romantically involved with him, he would arrange for a woman from the Ukraine (who would be romantically involved with him) to take her job. Mr Hughes also insisted the applicant hug him on occasions.

In an attempt to suggest that the conduct was not work related, Mr Hughes argued that the emails were sent after work hours and that the hugging occurred at the end of work day. He also claimed that Ms Hill was “flirty and coquettish with him and wore alluring dresses and flicked her hair in a sensual manner” to assert that she was interested in him.

In relation to attempts by Mr Hughes to “differentiate an advance that is nothing more than sexual in nature against his proposal of a deeper, loving relationship”, the Judge noted that this reflected a “social myopia on the part of the Respondent that, thankfully, is not reflected in the [Sexual Discrimination Act 1984]“.

Since the Full Court of the Federal Court decision in Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82 there has been a focus and trend to increasing the awards of damages in sexual harassment and discrimination matters generally. The Judge in Hill stated that he “accept[ed] the submission of the Applicant that Oracle recalibrated the assessment of damages in sexual harassment cases” in awarding the applicant $120,000 in general damages. The Judge also awarded $50,000 in aggravated damages.

In the current social climate where the issue of sexual harassment and the treatment of women in the workplace has a growing voice, this matter is a reminder that myopic attitudes and outdated ideas of what constitutes appropriate workplace behaviour, towards both men and women, are not tolerable and a failure to change can result in increasingly significant damages. As employers need to take all reasonable steps to avoid liability, it is critical that they recognise the importance of change and the need to take steps to reinforce appropriate behaviours through leadership, policies and training.