"Sexual harassment is currently very topical and not just thanks to Donald Trump," said Lander & Rogers Partner Derek Humphery-Smith. Humphery-Smith was speaking at a client briefing on workplace sexual harassment.
"There are various surveys and reports out there about the rates of sexual harassment in the workplace. Overall, the data confirms what we already know as practitioners: sexual harassment is still prevalent in the workplace," he said.
Partner Aaron Goonrey spoke about the recent shift in sexual harassment damages, where courts are now starting to award larger sums, in recognition of current community standards and as a means of bringing sexual harassment damages—which have traditionally been quite low—more into line with personal injury damages.
"Where sexual harassment cases are pursued in courts, the question of determining appropriate compensation can be difficult. The damage suffered by a victim may not be obvious or tangible, and courts have typically acted conservatively, with damages for hurt and humiliation, or pain and suffering generally in the range of $5,000 to $20,000. However, we are now starting to see the courts awarding more significant figures," Goonrey said.
"It is clear that prevailing community standards are influencing the courts' decisions to award higher damages to victims of sexual harassment. Recent case law demonstrates that courts are more inclined to award damages in excess of $100,000, or even over $1 million. These significant awards of damages are very likely to act as a 'corporate deterrent' to inappropriate workplace behaviour, as well as encourage organisations to implement and maintain appropriate workplace arrangements, including policies and training."
Goonrey and Humphery-Smith's advice for employers is that, ultimately, it is not just about mitigating the risk of a sexual harassment claim succeeding. Rather, it is about how to transform an organisation's culture so that it offers a safe working environment for its employees. Their key tips for successful cultural transformation include:
- Employers should ensure that they have in place a clear sexual harassment policy, which is effectively communicated to each workplace participant and is understood.
- Employers should conduct regular training sessions for all staff and management on sexual harassment and the organisational policy, ensuring that the training is specific about the types of behaviours that may amount to sexual harassment. Regular refresher training is recommended.
- An organisation's policy on workplace sexual harassment must be led from the top down, and managers need to understand their roles in the process. The chief executive officer or a senior management representative should endorse the policy and emphasise the fact that all staff are required to comply with it.
- In addition to having a very open and transparent sexual harassment policy, employers should survey their workers and ask if they have experienced or witnessed anything they believe to be sexual harassment. If people do not feel comfortable in speaking out, doubt can arise over what really constitutes harassment and any policies that are in place may be diluted.
- Employers should establish internal procedures for dealing with sexual harassment complaints or grievances to enable in-house resolution.
Humphery-Smith added that, "Where an employer has taken all reasonable and genuine steps to prevent sexual harassment in its workplace, it can avoid vicarious liability for the actions of its employees. Otherwise, the employer stands in the shoes of the harasser and can be liable for their actions".